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BIM License, Version 1.1
This End User License Agreement (the “Agreement”) is an agreement between Licensee (the person or company who is being licensed to use the software and documentation) and Kyrylo Kostiukov, each, a “Party” or collectively the “Parties”.
By confirming the purchase of the software from the website or otherwise executing this Agreement, Licensee agrees to be bound by the terms of this Agreement. If Licensee does not agree with (or cannot comply with) all of the terms of the Agreement, Licensee shall not install, copy or otherwise use the Software. In consideration of the mutual promises exchanged herein, the Parties agree as follows.
“Agreement” includes this agreement and all referenced documentation that may extend this agreement.
“Licensor” means the owner of the copyright and distributions rights for the software licensed by this Agreement, a private individual Kyrylo Kostiukov.
“Licensee” means the person, company or entity to which our Software is delivered. This includes downloading the Software from any of our websites or receiving it by any other means.
“Software” means the software that is developed and owned by Licensor, in whole or in part, and made available to Licensee hereunder, and subject to the terms of this Agreement.
“License” means the license granted by Licensor to Licensee to use the Software and Documentation in accordance with the terms and conditions of this Agreement.
“License Key” means a text or a file that can be configured with the Software to help the Licensee to verify that the software is used without violations of this Agreement and during the allowed period of time. In case if the Software will be used on a wrong Platform or will be used after expiration of this Agreement, Software may show warning message telling its users that the License Key needs to be updated.
“Documentation” means the user, system, and installation documentation for the Software.
“Modifications” means any derivative work based on the Software, including modifications, supplements, enhancements or additions thereof or thereto, that are developed by Licensee or its Affiliates (or any third party on behalf of any of the foregoing), including without limitation, any software related to the configuration, integration, implementation, or localizations of the Software.
“Support Services” means Licensor support services related to the Software provided under Standard Support Services Terms and Conditions agreement between Licensor and Licensee that comes as an extension to this License.
“Online License Key” is a short version of the License Key that might be easily entered in Software configuration and needs to be validated via the internet by communicating with remove server owned by Licensor.
“Offline License Key” is a License Key which can be validated without the need to communicate with remote server.
“Perpetual License” means a type of License that authorizes Licensee to use Software indefinitely.
“Term License” means a type of License that authorizes Licensee to use Software only for the clearly defined duration of time.
“Magento Platform” – in case if this Agreement applies to extensions (plugins) that extend functionality of ecommerce platform software distributed by Magento, Inc, a Platform is referring to specific installation of software product of Magento, Inc, licensed by a specific license from Magento, Inc.
“Magento Installation” –is one instance of Magento Platform, including an unlimited amount of websites, stores and store views inside this Platform.
“Approved Purpose” - the purpose of installing and using the Software as part of the Platform, specified in technical documentation, solely for internal purposes, in accordance with the Software's technical documentation and solely during the periods and on the maximum number of servers defined by this Agreement, including also all future versions of the same Platform not covered by support agreement, but available to be used to realize the right for using the software under perpetual License.
“Copyleft Software” means software, content, materials, and/or works of authorship licensed under terms that (a) grant, impose, or purport to impose a requirement or condition on the software or other technology combined or otherwise used or distributed therewith; (b) require or purport to require that software or other technology combined or otherwise used or distributed therewith be made available in source code form; (c) requires or purports to require that software or technology combined or otherwise used or distributed therewith be licensed for the purpose of making modifications or derivative works; (d) requires or purports to require that software or any other technology combined or otherwise used or distributed therewith be redistributable at no charge; or (e) may grant or purport to grant to third parties any rights or immunities under Licensor’s proprietary rights in the Software or any portion thereof.
“Intellectual Property Rights” means (a) any and all now known or hereafter known tangible and intangible: (i) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works; (ii) trademark, trade dress and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms and other industrial property rights; and (v) other intellectual and industrial property rights of every kind and nature throughout the universe, however designated, whether arising by operation of law, contract, license, or otherwise; and (b) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof or hereafter in force regarding any of the foregoing and under the laws of any jurisdiction.
2.1. Subject to Licensee's payment of the applicable fees, the Licensor grants to the Licensee a limited, personal, revocable, non-assignable, non-sublicensable, non-exclusive and non-transferable worldwide license to use the Software and the Documentation, create and use Modifications of the Software, in both cases solely for the Approved Purpose, for the duration of the Agreement and on the terms and conditions of the Agreement.
2.2. This Agreement gives Licensee the right to use only one copy of the Software on one Magento Installation solely for Licensee’s own personal or business use. A separate License must be purchased for each new Magento Installation, in which case a separate license must be requested for each new Software installation. Exception could be installation of the Software on a copy of production Magento Installation intended for development, testing, backup or other purposes, required to support production version of Magento Installations. You may not use any part of the code in whole or part in any other software or product or website.
2.3. Licensor should make the Software, including the associated technical documentation, available for the use by Licensee in accordance with this Agreement provided Licensor has received the applicable License Fees in full.
2.4. Licensee is authorized to make a reasonable number of non-Server copies of the Software, e.g., onto a local pc, as it requires for purpose of exercising its rights under this Agreement.
2.5. Licensor also grants Licensee the right to modify and create derivative works of the Software. Licensee may contribute the rights to any of those derivative works back to Licensor. Licensee may contact Licensor for more information regarding contributions of derivative works rights to Licensor. Regardless of whether Licensee contributes such derivative works rights to Licensor, Licensee hereby grants Licensor a perpetual and irrevocable (irrespective of the expiration or termination of this Agreement), nonexclusive, transferable, worldwide, and royalty-free license to reproduce, create derivative works of, distribute, perform, and display any derivative works of the Software developed by or for Licensee, and to use, make, have made, sell, offer to sell, import, export, and otherwise exploit any product based on any such derivative works.
2.6. Any distribution of the Software without consent of Licensor, including noncommercial distribution is considered as violation of this Agreement and entails liability, according to the current law. Licensor is the copyright holder of the Software. The Software or a portion of it is a copyrightable matter and is liable to protection by the law. Any activity that infringes terms of this Agreement violates copyright law and will be prosecuted according to the current law. Licensor reserves the right to revoke the license of any user who is holding an invalid license or who has illegally copied or distributed the Software.
2.7. In the event the Licensee obtained only a trial or evaluation version of the Software, Licensee may use the Software for internal noncommercial purposes, solely to evaluate the suitability of the Software for Licensee’s needs.
3.1. Except as expressly authorized herein, Licensee shall not (and shall ensure that its employees, contractors and other third parties do not):
(a) give, sell, distribute, sub-license, rent, lease or lend any portion of the Software or Documentation to anyone. You may not place the Software on a server so that it is accessible via a public network such as the Internet for distribution purposes;
(b) provide, use, or allow others to use the Software for the benefit of third parties;
(c) reverse engineer, disassemble, decompile or apply any other process or procedure to derive the source code of any closed source software included (if any);
(d) access, use or develop the Software in a way intended to avoid incurring fees or exceeding usage limits or quotas;
(e) remove any copyright information from the Software, this includes any text/links and logic intended to notify users of the software about possible violations of this Agreement;
(f) assert or authorize, assist, or encourage any third party to assert, any claim of infringement of Intellectual Property Rights regarding the Software;
(g) use any Copyleft Software in connection with the Software;
(h) imply any relationship or affiliation between Licensor and Licensee except as expressly permitted by this Agreement;
(i) use the Software for the purpose of building similar or competitive product or service.
4.1. Licensee shall protect the privacy and legal rights of all End Users and provide and maintain a legally adequate privacy notice to Visitors and End Users that addresses, without limitation:
(i) the permitted access and use of information, including personal data, and the limited purposes for which such information may be used;
(ii) the sharing of such information with third parties, including SaaS providers such as Microsoft in cases where Power BI or other services will be used.
5. Licensor responsibilities
5.1. Licensor will not access, use or disclose Licensee Content; except as necessary to maintain and provide the Software and Support Services to Licensee, or as necessary to comply with the law or an order of a governmental or regulatory body, or as expressly set forth in this Agreement.
5.2. Licensor may subcontract or otherwise outsource any part of its obligations hereunder in its sole discretion and Licensor will remain solely responsible for the performance of any such subcontractor.
5.3. Licensor may provide Licensee with patches, updates or upgrades to the Software as part of the provision of Support Services.
6.1. Licensee agrees to the fees and payment terms that are described during the process of making an order on purchasing the License to use the Software. If the purchase was done through a third party company, regulations between Third Party Company and the Licensee will apply.
6.2. Taxes. Each Party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party with respect to the transactions and payments under this Agreement.
6.3. Refund. If the purchase was done though a third party, in particular through a third-party Marketplace, the refund conditions of the Third Party Company apply. For the purchase, performed through www.bimproject.net website, Licensee will have thirty (30) days from the date of purchase to request a refund. In this case, Licensor has discretion to issue a credit or refund to Licensee in the event that Licensor determines that such credit or refund request is appropriate. The refund can be issued only for the first purchase of the license. The amount of refund will be equal to 100% in the first 30 days or to 50% in the first 180 days, where 100% refers to the purchase price, excluding non-refundable money transfer Fees if they apply. Licensor has the right not to do a refund if he considers the refund request to be controversial. Refund request might be made by using contact forms on the www.bimproject.net website or by sending an email to the Licensor. In the event of a refund, the Agreement will be terminated.
6.4. Prices. Prices for Extensions offered by the Licensor may change at any time, and Licensor does not provide price protection or refunds in case of a price reduction or promotional offering.
7.1. The term of the Agreement shall commence on the event when License Key and the Software becomes available for the Licensee to download and expires after amount of days equal to number of days specified during the purchase of the License will pass (“License Days”). In case the purchased License for the Software is marked as Perpetual License, the License granted herein shall remain in effect perpetually unless terminated.
7.2. In order to increase the duration of this Agreement for the Term License, same License might be purchased again for the same Software for the same Platform Installation. In this case and after all required fees will be paid, the duration of this Agreement will be extended by the amount of License Days, specified in the purchased License. The License Term might be extended only up to 5 Years in the future.
7.3. Termination. Either Party may terminate this Agreement for cause upon thirty (30) days’ prior written notice if the other Party is in material breach of this Agreement and the material breach remains uncured at the expiration of the thirty (30) day period.
7.4. Effect of Termination. Upon the Termination Date:
(a) All of Licensee’s licenses under this Agreement immediately terminate and Licensee shall cease all use of the Software;
(b) Within thirty (30) days thereafter, Licensee shall certify in writing to Licensor that Licensee has ceased use of the Software and that all copies or embodiments thereof (including related Documentation) in any form, including partial copies within modified versions, have been destroyed;
(c) Licensee remains responsible for all fees and charges Licensee has incurred through the Termination Date;
(d) Licensee will immediately return or, if instructed by Licensor, destroy all Licensor Content in Licensee’s possession.
8.1. Licensee acknowledges that extension may communicate with remote server owned by Licensor in the following cases:
(a) if Online License Key is used, Online license can be replaced at any time with Offline License Key to prevent this communication;
(b) during the client’s interactions with the website required to obtain and configure the license;
(c) during the installation process if the software is obtained from Licensor’s server during the installation as in case with usage of composer repository.
8.2. Licensor may gather information during this communication and use this information to analyze usage statistics.
8.3. Licensee also acknowledges that Extension may add a static file to the platform where it is installed that will be accessible from the internet allowing to identify if the extension is used or not on particular website. This might be used for the purpose of an audit for proper license usage.
9.1. Confidential Information. Each Party acknowledges that, as a result of this Agreement, it may gain access to certain Confidential Information of the other Party. “Confidential Information” means the all materials, documentation and information, including, but not limited to, techniques, algorithms and processes and technical, business and marketing information, designated or marked by the Party disclosing such documentation and information orally, visually or in writing (the “Disclosing Party”) as “proprietary” or “confidential” or the like, or that the other Party (the “Receiving Party”) knows to be confidential, or should reasonably consider to be confidential under the circumstances of its disclosure, supplied by the Disclosing Party to the Receiving Party in connection with this Agreement.
9.2. Protection of Confidential Information. During the Term and for a period of five (5) years thereafter, each Receiving Party agrees (a) to hold the Disclosing Party’s Confidential Information in strict confidence, using the same degree of (but no less than reasonable) care and protection that it exercises with its own Confidential Information of a similar nature; (b) not to directly or indirectly disclose or otherwise make available any Confidential Information of the Disclosing Party to a third party; and (c) not to copy or use Disclosing Party’s Confidential Information for any purpose other than as necessary to fulfill Receiving Party’s obligations or exercise its rights under this Agreement. Each Party will disclose the other Party’s Confidential Information only to its employees and authorized contractors with a need to know in order to fulfill such Party’s obligations hereunder and who have been informed of and have agreed to abide by the provisions of this Section.
9.3. Exclusions. The obligations of this Section will not apply to Confidential Information if such information: (a) is publicly available prior to or at the time of disclosure, or later becomes publicly available through no act of the Receiving Party; or (b) was, prior to disclosure hereunder, rightfully known to the Receiving Party (other than in connection with this Agreement) without confidentiality restriction.
10.1. References to Licensee. Unless Licensee requests otherwise by providing Notice to Licensor, Licensor may use Licensee’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features (“Licensee Marks”) in presentations, marketing materials, customer lists, financial reports, and website listings (including links to Licensee’s website) for the purpose of advertising or publicizing Licensee’s use of the Software. Any such usage of Licensee Marks shall be in accordance with Licensee’s trademark guidelines, as provided to Licensor in writing.
10.2. Contractors. Subject to the terms and conditions of this Agreement, Licensee may permit authorized third parties to access the Software provided, that (a) the third party is bound by a valid and enforceable written agreement with Licensee, at least as protective of Licensor as this Agreement, solely as needed to provide the contracted services to Licensee in connection with the Software hereunder; and (b) Licensee shall be responsible for all acts and omissions by such third party as if they were Licensee’s acts and omissions.
10.3. Open Source Software. Licensee acknowledges that the Software may include Open Source Software, which is governed by the applicable license terms thereof. A list of such open source software, as amended from time to time, including the links applicable to such open source software is specified in the product software bundled within the Software, and the Software is subject to the provisions of such license agreements, and in the event of any contradiction between the provisions of this Agreement and the provisions of such applicable license agreement, the provisions of the applicable open source license agreement shall prevail solely with respect to such open source software products.
10.4. If a License elects to provide any suggestions, requests for changes, comments or other feedback to Licensor or its Affiliates regarding its products or services, Licensor and its Affiliates will be entitled to use and commercially exploit the feedback without restriction and with no obligation to Licensee.
11.1. An event of default shall be deemed to occur if: (i) Licensee fails to perform any of its obligations under the Sections entitled "License Exclusions"; (ii) Licensee fails to pay amounts due pursuant to its agreement to the fees and payment terms of this Agreement within seven (7) days of the relevant due date; or (iii) either party fails to perform any other material obligation under this Agreement and such failure remains uncured for more than thirty (30) days after receipt of written notice thereof.
11.2. If an event of default occurs, the non-defaulting party, in addition to any other rights available to it under the law, may terminate this Agreement and all licenses granted hereunder by written notice to the defaulting party.
12.1. Licensor warrants for a single period of ninety (90) days commencing upon the initial delivery of the Software, as delivered, will substantially perform in accordance with the specifications contained in the Documentation provided with the Software. In the event that the Software fails to comply with the foregoing warranty, Licensee shall send written notice to Licensor prior to the expiration of the warranty period describing in reasonable detail the nature of the nonconformance. Licensor will undertake commercially reasonable efforts to correct such nonconformance. The foregoing states Licensor’s sole and exclusive obligation and Licensee’s sole and exclusive remedy for a breach of the warranty set forth in this Section.
12.2. Licensor warrants that it has the legal authority to grant the licenses set forth in this Agreement. Licensor further warrants that to the best of its knowledge, the Software as initially delivered to Licensee is free of viruses, “Trojan horses”, worms and other harmful components, provided however, that Licensee’s sole and exclusive remedy for Licensor’s breach of the foregoing warranty is that Licensor will use commercially reasonable efforts to correct the nonconformance.
12.3. EXCEPT AS SET FORTH IN THIS SECTION, THE SOFTWARE IS PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, LICENSOR, ITS AFFILIATES AND ITS LICENSORS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SOFTWARE, AND DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (A) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, OR QUIET ENJOYMENT, (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, AND (C) THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
UNDER NO CIRCUMSTANCES WILL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL , INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR COSTS (INCLUDING ATTORNEY’S FEES) RESULTING FROM ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT; OR FOR ANY LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS OR SAVINGS; LOSS OF BUSINESS; LOSS OF GOODWILL OR REPUTATION; LOSS OF, DAMAGE TO, BREACH OF, OR CORRUPTION OF DATA; BREACH OF SECURITY; OR COSTS OF COVER, EVEN IF LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE.
14.1. For the periods specified during the order of the License, Licensor or its authorized reseller will provide support services and Updates for the Software as described in Licensor's Standard Support Services Terms and Conditions. Licensor will have no obligation to provide support for any modifications or derivative works of the Software developed by anyone else other than Licensor.
14.2. Terms and conditions described in Standard Support Services Terms and Conditions document are valid during the period when the Software is covered by Support Services. For the Term License, Support Services are provided during the period covered by this Agreement. For the Perpetual License, the period covered by Support Services is equal to one year since the day after Perpetual License commence.
Licensee hereby grants Licensor the right to display Licensee's logos as part of Licensor's customer lists and other related marketing materials. The parties shall cooperate to undertake mutually-agreed joint marketing activities.
16.1. Licensee may not assign this Agreement without the prior written consent of Licensor; provided that such consent shall not be required for assignment to a purchaser of all or substantially all of the assets or equity securities of Licensee who undertakes in writing to be bound by all the terms and conditions of this Agreement. Any prohibited assignment shall be null and void.
16.2. Licensor may assign this Agreement, or transfer any right or delegate any duty hereunder.
17.1. Agreement Licensor may in its sole discretion add, remove, change and/or modify this Agreement at any time to bring more clarity to it. Any changes are effective after we provide you with at least thirty (30) days’ notice of the changes by sending you notice of changes by email. Licensee has 30 days to decline the changes by written notice per email or per post. In case of a Term license, the purchase of a license prolongation may require to consent with latest version of this agreement at the moment of the purchase of the license prolongation.
17.2. Force Majeure. Except for payment obligations, neither Party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outage, utilities or telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
17.3. Independent Contractors; Non-Exclusive Rights. Licensor and Licensee are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither Party nor any of their respective Affiliates is an agent of the other for any purpose or has the authority to bind the other.
17.4. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.