MEP Content Tool Terms and Conditions 10.15.24

TERMS AND CONDITIONS

1. INTRODUCTION. Collectively, these Terms and Conditions, and the SaaS Terms set forth on Schedule 1, attached hereto, may be referred to as this “Agreement”. “Client” refers to the person or entity identified as the Client on whose behalf this Agreement is accepted. In the event of a conflict between these Terms and Conditions, and the SaaS Terms, the order of precedence for interpretation shall be (1) the SaaS Terms, (2) these Terms and Conditions. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms as set forth in Section 2, below.
2. DEFINITIONS. As used in this Agreement:
   • 2.1. “Aggregate Information” means any information or data derived from Consumer Data, which is not specific to a person, does not refer to or identify any specific person, and cannot be used, alone or in conjunction with other information, to identify any specific person.
   • 2.2. “Client Data” means all electronic data or information submitted by Client to the VIATechnik Platform or directly to VIATechnik through the performance of its Services, and all Work Product. Client Data includes, for the avoidance of doubt, Consumer Data. Client Data does not include Aggregate Information.
   • 2.3. “Consumer Data” means name, mailing address, telephone number, email address, and any other non-public, identifying information available to VIATechnik as a result of the Client’s use of the Services or the VIATechnik Platform. Consumer Data does not include (i) any information that either VIATechnik or the Client has the right to use and which is obtained from consumers other than through transactions contemplated under this Agreement or (ii) Aggregate Information.
   • 2.4. “Third-Party Products” means any third-party products provided with or incorporated into the Services or the VIATechnik Platform.
   • 2.5. “Users” means the Client’s employees, consultants, contractors, customers, or agents, or any other person affiliated with Client, who are authorized to use the Services, and have been supplied account credentials by Client (or by VIATechnik at Client’s request).
   • 2.6. “VIATechnik IP Rights” means any patent, copyright, trade secret, trademark or other intellectual property right embodied in or related to the VIATechnik Technology.
   • 2.7. “VIATechnik Marks” means the VIATechnik name, logo, domain names, and any other product or service names used by VIATechnik in connection with the Services or the VIATechnik Platform.
   • 2.8. “VIATechnik Platform” means all proprietary, software, applications, plugins, add-ons, and internet-based software-as-a-service (i.e. “MEP Content Tool”) provided by VIATechnik to Client to provide access to the VIATechnik Technology in accordance with this Agreement.
   • 2.9. “VIATechnik Technology” means (i) all of the proprietary technology, documents, software, hardware, products, processes, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information used or provided by VIATechnik in connection with the VIATechnik Platform and the Services; (ii) all software, technology, information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, technical or functional descriptions, requirements, plans or reports, or other works developed or created in connection with this Agreement, including, for the avoidance of doubt, any information, data, or other content derived from VIATechnik’s monitoring of Client’s access to or use of the VIATechnik Platform or the Services, but does not include any Client Data; and (iii) any modifications, improvements to, or derivative works of, any of the foregoing.
   • 2.10. “Services” means any product support, consultation, or software-as-a-service rendered by VIATechnik.
   • 2.11. “Work Product” means the VIATechnik Platform, VIATechnik Technology, and all materials, documents, diagrams, plans, and requirements received by Client in printed or electronic formats provided by VIATechnik.
3. VIATECHNIK CONTACT PERSON. VIATechnik will designate one of its employees to serve as the contact person for Client in connection with the Services, the VIATechnik Platform, and the Work Product to be provided under this Agreement. VIATechnik shall cause such designee to be reasonably and promptly available to coordinate with Client so that the objectives of this Agreement can be timely carried out to the satisfaction of the parties.
4. CONFIDENTIAL INFORMATION. If VIATechnik or Client supplies proprietary or confidential information to the other party in connection with this Agreement that is identified as, or that the other party should have known is, confidential, then the other party agrees to (a) protect the confidential information in a reasonable manner and (b) use and reproduce confidential information only as required to perform its obligations under this Agreement. This Section will not apply to information that is publicly known, already known to the receiving party, disclosed to a third party without restriction, or disclosed pursuant to legal requirement or order. Subject to the foregoing, VIATechnik may disclose Client’s confidential information to VIATechnik’s employees, contractors and subcontractors in order to perform the Services.
5. PROPRIETARY RIGHTS.

• 5.1. Reservation of Rights. As between Client and VIATechnik, VIATechnik owns all right, title and interest in and to the Services, VIATechnik Platform, VIATechnik Marks, VIATechnik Technology, VIATechnik IP Rights, Aggregate Information, and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Client’s use of the VIATechnik Marks as authorized herein shall not create in Client’s favor any right, title or interest therein. Client hereby assigns and will assign and will cause each of its Users to assign to VIATechnik all right, title and interest in and to the VIATechnik Platform any and all VIATechnik Technology created, developed or reduced to practice by or on behalf of Client or any of its Users, other than the limited license rights granted in this Agreement. Other than as expressly set forth in this Agreement, no license or other rights in or to the Services, VIATechnik Platform, VIATechnik Technology or VIATechnik IP Rights are granted to Client, and all such licenses and rights are hereby expressly reserved. VIATechnik is the exclusive owner of all software, specifications, documentation, ideas, know-how, techniques, processes, inventions or other intellectual property that VIATechnik or its subcontractors may develop, conceive or deliver under this Agreement, including all patents, copyrights and other intellectual property rights thereto.

• 5.2. Similar Services. In recognition that VIATechnik personnel performing under this Agreement may perform similar services for others, this Agreement shall not prevent VIATechnik from providing services or developing materials that are competitive with those developed or provided under this Agreement, regardless of any similarity between such services or materials.  Subject to the confidentiality restrictions contained in Section 4, VIATechnik shall be free to use its general knowledge, skills, and experience, and any ideas, concepts, know-how and techniques used in the course of providing the Services, on other engagements.  VIATechnik’s other clients shall have the right to use materials incorporating such ideas, concepts, know-how and techniques.

• 5.3. WORK PRODUCT. VIATechnik is the exclusive owner of all Work Product as defined in Section 2, and any other software, specifications, documentation, ideas, know-how, techniques, concepts, methods, processes, inventions or other intellectual property that VIATechnik or its subcontractors may develop, conceive or deliver under this Agreement, including all patents, copyrights and other intellectual property rights thereto. This Agreement is not a sale and does not transfer to Client any title or ownership in and to the Work Product. Subject to the terms of this Agreement, VIATechnik grants to Client a non-assignable, non-exclusive, non-transferable license to use the Work Product solely in connection with the Services. Except as expressly set forth in this Agreement, Client shall not (a) use the Work Product for the benefit of any other person or entity, or permit any third party to make such use, (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Work Product, or (c) copy, modify, transcribe, store, translate, sell, lease, create derivative works based on, or otherwise transfer the Work Product, in whole or in part. If Client has any issue or problem with the Work Product or Services provided by VIATechnik or its contractors or employees under this Agreement, Client must provide written notice of such issue or problem within 30 days of the delivery of such Work Product or Services. Client represents, warrants and covenants that Client is solely responsible for reviewing all Work Product and shall be responsible to any third-party beneficiaries of the Work Product or other persons or entities that may rely on the Work Product.

• 5.4. Embedded IP.  For VIATechnik Technology embedded in Work Product (such embedded VIATechnik Technology, “Embedded IP”), VIATechnik grants Client a non-exclusive, non-transferable, perpetual, royalty-free, worldwide right to use such Embedded IP as necessary to use the Work Product as provided in this Agreement. VIATechnik also grants Client the right to permit a third party to use the applicable Embedded IP solely in connection with providing services to Client related to Client’s use of the Work Product, and subject to such third party’s prior entry into a confidentiality agreement with Client no less restrictive than the terms of Section 4 of this Agreement.  Client shall be responsible for any breach of such confidentiality agreement in respect of such Embedded IP by such third party, as if such breach were a breach of Section 4 of this Agreement. Nothing in this Agreement will be construed to grant Client, its assigns or any third party any right to separate Embedded IP from the Work Product into which it is incorporated, or to market or commercially exploit such Embedded IP on a stand-alone basis, or to otherwise sublicense or grant to any other party any rights to use, copy or otherwise exploit, or create derivative works from, such Embedded IP, except as expressly provided in this Section 5.4.

• 5.5. Client Property. As between VIATechnik and Client, Client owns all right, title and interest in and to any trademarks, trade names, service marks, or logos of Client and Client Data. Client Data shall be considered Confidential Information of Client subject to the terms of this Agreement. Client hereby grants VIATechnik a non-exclusive, royalty-free right to access and use Client Data in connection with performing Services.

• 5.6. Suggestions. Client may, from time to time, provide suggestions, techniques, know-how, comments, feedback or other input to VIATechnik with respect to the Services (collectively, “Suggestions”). Both parties agree that each of the Suggestions is and shall be given entirely voluntarily.  Each Suggestion, even if designated as confidential by Client, shall not, absent a signed, written agreement with VIATechnik, create an obligation of confidentiality for VIATechnik. Except as otherwise set forth in a separate, subsequent written agreement between the parties, VIATechnik shall be free to use, disclose, reproduce, license or otherwise distribute and exploit each Suggestion as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

6. REUSE OF PROJECT WORK PRODUCT. Reuse of any documents or other Work Product, including electronic media, pertaining to the Services by the Client for any purpose other than that for which such documents or Work Product, were originally prepared, or alternation of such documents or Work Product, without written verification or adaption by VIATechnik for the specific purpose intended, shall be at the Client’s sole risk.
7. RELIANCE ON THE CLIENT DOCUMENTS. VIATechnik shall rely on the accuracy, completeness and adequacy of all plans, designs, drawings, instructions and other documents and information provided by the Client and any of its contractors, representatives and agents (“Client Documents”). Client agrees to indemnify, defend, and hold harmless VIATechnik and any of its Clients, directors, officers, employees and agents (“VIATechnik Party”) from and against any loss, liability and damages sustained by them resulting from any of VIATechnik Party’s use or reliance on such Client Documents.
8. INDEMNITY. To the fullest extent permitted by law, each party (“Indemnifying Party”) shall indemnify and save harmless the other party, its Clients, directors, officers, employees and agents (“Indemnified Party”) from and against loss, liability, and damages sustained by the Indemnified Party as a result of Indemnifying Party’s breach of this Agreement or the negligence of the Indemnifying Party, its employees or agents. The Indemnifying Party’s liability to indemnify hereunder shall be reduced proportionately to the extent that any acts or omissions of the Indemnified Party contributed to such claim, liability or loss.
9. DISCLAIMERS OF ALL WARRANTIES. VIATechnik hereby disclaims all warranties, whether express or implied, with respect to the Services and the Work Product, including by not limited to, any implied warranty of merchantability, fitness for particular purpose and/or title and, except as set forth in these terms and conditions, the Services and the Work Product are provided “as is”.
10. LIMITATIONS OF LIABILITY. NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHER THEORY), TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFIT) ARISING OUT OF THIS AGREEMENT. No employee of VIATechnik shall have individual liability to Client. Client agrees that, to the fullest extent permitted by law, VIATechnik’s total liability to Client for any and all injuries, claims, losses, expenses or damages whatsoever arising out of or in any way related to the Services or this Agreement from any causes including, but not limited to, VIATechnik’s negligence, error, omissions, strict liability, or breach of contract shall not exceed the total compensation received by VIATechnik under this Agreement.
11. TERM; TERMINATION.
    • 11.1. This agreement commences on the date of acceptance and shall continue until termination pursuant to this Section.
    • 11.2. This Agreement may be terminated (a) by mutual agreement by the parties (b) by delivery of a termination notice in case either party is in breach and fails to cure such breach within ten days of a written notice thereof (c) automatically without notice in case either party voluntarily or involuntarily files for bankruptcy or liquidation (d) at VIATechnik’s sole discretion.
    • 11.3. Upon termination of this Agreement for any reason, the Client shall pay VIATechnik all fees for the Services carried out up to and including the date of termination together with payment of any costs and expenses incurred by VIATechnik to that date.

12.  NON‐SOLICITATION. During the term of this Agreement and for a period of 6 months after the Termination Date, Client shall not, directly or indirectly, without VIATechnik’s prior written consent, recruit, hire or contract with any current or former employee or contractor of VIATechnik, or any of VIATechnik’s affiliates, or otherwise attempt to solicit or induce any such individuals to leave the employment of or terminate his/her relationship with VIATechnik or VIATechnik’s affiliates.
13. AUTHORITY. The persons signing this Agreement warrant that they have the authority to sign as, or on behalf of, the party for whom they are signing.
14. STATUTE OF LIMITATIONS. To the fullest extent permitted by law, the parties agree that, except for claims for indemnification, the time period for bringing claims regarding VIATechnik’s performance under this Agreement shall expire one year after the completion of Services.
15. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including, for the avoidance of doubt, the SaaS Terms, and the annexes attached hereto, constitutes the entire Agreement between the parties and contains all of the agreements between the parties with respect to the subject matter hereof; this Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof. No change or modification of this Agreement shall be valid unless the same is in writing and signed by the parties. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the person or party to be charged.
16. GOVERNING LAW; VENUE. The laws of the State of Illinois (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement. The parties agree that any cause of action that may arise in any way under or due to this Agreement shall only be brought in state or federal courts located in the County of Cook, Illinois.
17. ATTORNEY’S FEES. Client shall be responsible for all fees and expenses (including, but not limited to, attorneys’ fees and expenses) incurred by VIATechnik in connection with the enforcement of this Agreement, including, but not limited to, the collection of amounts owed to VIATechnik under this Agreement.
18. CERTIFIED PAYROLL. VIATechnik does not provide certified payroll.