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End User License Agreement (EULA)General Terms and Conditions (GTC)Support Terms

End User Licence Agreement for Advanced Electrical Design for Autodesk Revit (the "EULA")

(version 0.2, 2022.05.13)

IMPORTANT—READ CAREFULLY:

PLEASE CAREFULLY READ THIS EULA AS IT GOVERNS YOUR USE OF THE ACCOMPANYING SOFTWARE PRODUCT WHETHER YOU OBTAINED THE SOFTWARE PRODUCT ELECTRONICALLY, VIA DOWNLOAD OR ON DISC OR OTHER MEDIA. ADDITIONALLY, THIS EULA GOVERNS YOUR USE OF THE SOFTWARE PRODUCT WHETHER YOU WERE GRANTED A TRIAL, EVALUATION, DEMONSTRATION, STANDARD OR ANY OTHER TYPE OF LICENSE TO USE THE SOFTWARE PRODUCT.

TO CONFIRM YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA AND YOUR AGREEMENT TO BE BOUND BY THIS EULA, CLICK THE APPROPRIATE BUTTON APPEARING ON YOUR SCREEN DURING THE INSTALLATION PROCESS. IF YOU DO NOT WISH TO BECOME A PARTY TO THIS EULA AND DO NOT AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, CLICK THE CONVERSE APPROPRIATE BUTTON OR THE CANCEL BUTTON: THIS WILL AUTOMATICALLY ABORT THE INSTALLATION PROCESS: IN SUCH LATTER CASE, IF THE SOFTWARE PRODUCT HAS ALREADY BEEN PROVIDED TO YOU AS A PHYSICAL COPY, YOU MUST RETURN THE SOFTWARE PRODUCT WITHIN THIRTY (30) DAYS OF RECEIPT THEREOF (INCLUDING ALL ACCOMPANYING PRINTED MATERIALS, ALONG WITH THEIR CONTAINERS) TO THE PLACE FROM WHICH YOU OBTAINED IT. IF THE SOFTWARE PRODUCT HAS BEEN PROVIDED TO YOU AS A DOWNLOAD, YOU MUST IMMEDIATELY DELETE OR EXPUNGE THE SOFTWARE INCLUSIVE ALL RELATED FILES AND ANY OTHER ELECTRONIC MATERIAL-FROM YOUR COMPUTERS, HARD DISKS, SERVERS, TABLETS, SMART PHONES OR OTHER DEVICES CONTAINING THE SOFTWARE PRODUCT.

This EULA is a legal agreement between your corporation, company, other legal entity, or natural person, to which the Software Product has been provided, (hereinafter “You”), and BIM-Electrical Corporation (“BIMEC”) BIMEC (as defined hereunder). It is Your responsibility to ascertain that any person completing the installation of the Software Product has the mandate or legal authority to bind You and confirm Your acceptance of the terms and conditions of this EULA. If a system integrator, contractor, consultant, or any other party installs or uses the Software Product on Your behalf prior to Your use of the Software Product, such party will be deemed to be Your agent or representative acting on Your behalf, and You will be deemed to have accepted all of the terms and conditions contained in this EULA as if You had installed or used the Software Product Yourself. If You are a third party (e.g. a system integrator, contractor, consultant or any other third party) installing or using the Software Product on behalf of or prior to an end user or licensee of the Software Product (hereinafter “End User”), it is Your responsibility to ascertain that You have obtained the mandate or legal authority to bind the End User to this EULA.

UNLESS OTHERWISE AGREED IN WRITING BY BIMEC OR STATED HEREIN, SOFTWARE MAINTENANCE AND PREMIUM SUPPORT SERVICES ARE NOT INCLUDED.

The terms of this EULA shall apply to the Software Product that accompanies this EULA or to which this EULA relates, including any associated media containing any device that activates the program(s) contained in said software product, any printed, online or electronic documentation, information, specifications, instructions or material (hereinafter “Documentation”) related to said software product (hereinafter “Software Product”). The Documentation can be retrieved via BIMEC’s website www.bim-electric.com or by contacting BIMEC’s local support center. You agree that such Documentation and other content may be supplied only in the English language, unless otherwise required by local law without the possibility of contractual waiver or limitation. The Software Product also includes any software updates, add-on components, web services and/or supplements that BIMEC may provide to You or make available to You after the date You obtain Your initial copy of the Software Product and after Your acceptance of this EULA. If such items are accompanied by a separate license agreement or terms of use such separate license agreement shall prevail over this EULA for such separate items.

As used in this EULA, “BIMEC” shall mean that subsidiary of Schneider Electric Industries SAS which has accepted and confirmed in the written or text form Your license purchase for the Software Product and then issued, in hard or electronic copy, a confirmation of Your purchase order (hereinafter “Order Confirmation”), which, among other things, may identify (i) the particular Software Product(s) ordered by or for You, (ii) the location of the designated devices or named users, (iii) the duration or term of the Software Product license granted to You, (iv) the license fees and any applicable fees for maintenance and support not included with the Software Product owed by You and/or (v) the payment schedule.

The terms and conditions of this EULA will also apply to You and shall remain fully enforceable between BIMEC and You even if the Software Product will be delivered to You as a mobile application through any mobile applications platform or store proprietary to BIMEC or to any third party officially appointed or recognised by BIMEC to commercialize the Software Product as a mobile application. Additionally, the terms and conditions of this EULA will apply to You even if You obtained the Software Product from an authorized BIMEC distributor or reseller. This EULA only gives you limited rights to use the Software Product and BIMEC and its licensors reserve all other rights. You do not acquire any rights, express or implied, other than those expressly granted in this EULA. You agree that You will use the Software Product only as expressly permitted in this EULA and You will comply with any technical limitations in the Software Product that only allow You to use the Software Product in certain ways.

1. GRANT OF LICENSE
  1. In consideration of full payment of the Software Product license fee when due and subject to Your compliance with all of the terms and conditions contained in this EULA, BIMEC grants to You a non-exclusive non-transferable, limited, world-wide (unless geographically restricted), license right to use the Software Product described in the Order Confirmation, in the Documentation, related to said Software Product for the term identified therein and in accordance with the license model identified therein. The Software Product may only be used for purposes of Your ordinary business by the particular named user(s), in the particular location(s), on the particular device(s) and/or on the particular system(s) for which You have been licensed such Software Product, as those named user(s), location(s), device(s) and/or system(s) are identified in the Order Confirmation, in the Documentation. If the Order Confirmation, the Documentation fail to state a duration/term of the license granted hereunder then such duration/term shall be deemed to be one (1) year from the date the Software Product is delivered to You (unless a trial license, in which case the duration/term shall be deemed to be thirty (30) days). The Software Product will be provided to You in object code (machine-readable) form only and under no circumstances is BIMEC obligated to disclose the source code of the Software Product to You, unless such obligation is required in accordance with Section 11. The Software Product (including the related Documentation) is licensed to You and not sold to You.
  2. This EULA describes and governs Your right to install and use the Software Product. It is expressly agreed that the terms and conditions of this EULA and any Order Confirmation issued by BIMEC will prevail over and supersede the terms and conditions contained in any purchase order or purchasing document issued or submitted by You; and the terms and conditions of any purchase order or purchasing document issued by You are expressly rejected by BIMEC to the extent inconsistent with the terms and conditions of this EULA.
  3. Upon expiry of the trial period or, in case of a non-perpetual license upon expiry of the limited period of time for which the license was granted to You, Your license to the Software Product will automatically and immediately terminate, unless a further license is obtained from BIMEC. Consequently, the Software Product might automatically be de-installed and/or rendered unusable (with or without prior warning).
  4. You acknowledge that if You need to activate the Software Product through the use of internet or telephone, toll charges may apply.
  5. If technological measures are designed/incorporated to prevent unlicensed or illegal use of the Software Product, You agree that BIMEC may use those measures and You agree to comply with any requirements regarding such technological measures. Such measures do not constitute a defect in the Software Product nor do they entitle You to any warranty rights.
  6. Floating, concurrent or shared use of the Software Product is not permitted and the use of the Software Product shall be licensed under this EULA as a Single User License.
  7. The Single User License can only be installed and used on a single personal computer, tablet, smartphone or similar device (hereinafter “Device”), at any given time and is prohibited from being installed and used on a network or any other multi-station computer system that allows simultaneous use by several users.
  8. Notwithstanding the above Section, You may download and use the Software Product on more than one single Device only if: (i) a component of the Software Product is a mobile or web-based application (app) and (ii) if said Devices are all used by You under the same user account under which the application was initially downloaded.
2. RESTRICTIONS
  1. You may only install, use, access and display the Software Product on a computer or other Device, strictly in accordance with the accompanying Documentation, and only for the specific purposes stated in this Documentation or in this EULA.
  2. Furthermore, You will not nor will You permit others to:
    1. copy the Software Product except for backup purposes only in support of Your permitted use of the Software Product. Any such copy must include all copyright notices and any other proprietary legends present on the original Software Product. You may not sell, lease, license, rent or in other ways transfer any copy of the Software Product. If this Software Product contains Documentation that is provided only in electronic form or online, You may print one copy of such electronic Documentation for each license acquired to the Software Product. If this Software Product contains Documentation that is provided in printed form, You may make one copy of such printed Documentation for each license acquired to the Software Product;
    2. modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise seek to reconstitute the source code of the Software Product, nor create derivative works from the Software Product. Further, in case of errors, bugs or defects of the Software Product, BIMEC expressly reserves the right to correct such errors, bugs or defects to the extent permitted by law;
    3. sub-license, lease, outsource or rent the Software Product, or permit a third party to use the Software Product for its or anyone else’s benefit. Nor may You use the Software Product as part of a facility management, timesharing, service provider or service bureau arrangement;
    4. other than as expressly permitted under this Agreement, including but not limited to Section 3, distribute in whole or part, modify, or create derivatives of, the Software Product or distribute applications created with the Software Product; or
    5. directly or indirectly, export, re-export, download, or ship the Software Product in violation of the laws and regulations of the U.S.A. or the applicable jurisdiction in which You use or are downloading the Software Product.
  3. Should You not fully comply with the above provisions, You shall bear any and all consequences, including any damages whatsoever, resulting therefrom.
  4. The use of the Software Product is intended only for use with content owned by You, public domain content or properly licensed content. You may require a patent, copyright, or other license from a third party to create, copy, download, record or save content files for use with the Software Product or to serve or distribute such files to be used with the Software Product.
  5. You agree that You shall only use the Software Product in a manner that complies with all applicable laws in the jurisdictions in which You use or are downloading the Software Product, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights. You may not use the Software Product in an attempt to, or in conjunction with any Device, program or service designed to, circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
3. DESCRIPTION OF OTHER RIGHTSDemonstration, test and similar licences. Should the Software Product be licensed to You under a demonstration license or under a free of charge license for test or evaluation purposes, You shall not be entitled to use the Software Product for any purpose other than the one for which such license is granted to You, and without prejudice to the other sections of this EULA.
4. INSTALLATION AND MAINTENANCE You shall be responsible for the proper installation of the Software Product as per the terms of its Documentation and You shall bear all expenses and costs in connection therewith. Except for warranties provided subject to Section 9 and Updates as provided for in Section 5, BIMEC provides no maintenance in connection with the Software Product, other than those which may be defined by way of separate agreement.
5. UPDATE POLICY
  1. If BIMEC creates updated or upgraded versions, patches, or bug fixes of the Software Product (“Updates”), it will provide such updated or upgraded versions to You during the term of the Agreement. Updates do not include local add on components, web applications, or web services purchased additionally.
  2. If You are entitled to receive updated or upgraded versions, or add-on components of the Software Product, such shall be subject to the terms of this EULA as such terms may have evolved at the time of supply of any update, upgrade or add-on.
  3. Some Software Products covered by this EULA include a software utility (hereinafter “Software Update Utility”). Its functions are (i) to notify You of a download availability of an update, an upgrade or a new version of the Software Product; (ii) to allow You to download them, provided that You pay associated fees, if any; and (iii) to improve Your experience in the Software Products whilst enabling BIMEC to collect and process relevant information related to Your use of the Software Products. These functions are active by default and may be disabled from the settings of the Software Update Utility. A reference to the Software Product in this EULA will be deemed to include a reference to the Software Update Utility.
  4. If You are entitled to receive any updated, upgraded or new version, or add-on components of a Software Product, You are encouraged to implement them so as to take advantages of new features, enhancements or bug fixes contained in such updated, upgraded, or new version, or add-on. You agree that BIMEC will not provide maintenance or support (unless separately contracted for) to any versions of the Software Product other than the current version and the two immediately prior versions of the Software Product.
  5. A reference to the Software Product in this EULA will be deemed to include a reference to any updated, upgraded, new version or add-on of the Software Product provided to You by BIMEC or its authorised reseller.
6. LICENSE KEY
  1. You acknowledge that, if the Software Product is protected by a lock, the Software Product cannot be used except in conjunction with a valid software key code, hardware key, or an identity-based license, (hereinafter ‘License Key’) provided to You or to another person on Your behalf by or on behalf of BIMEC or its authorised reseller.
  2. You agree that such License Key is to be used solely with the Software Product for which it is provided. While BIMEC may, in its sole discretion, provide You with the License Key prior to receipt from You of the applicable license fees (if any), You will remain obligated to pay such fees to BIMEC.
  3. Any and all risk in the media on which the Software Product and License Key are provided passes to You upon delivery. In the event that the Software Product or License Key is lost, stolen or destroyed after delivery, BIMEC will not be required to replace the Software Product or License Key.
  4. In the event of a lost, stolen or destroyed License Key, and if BIMEC agrees to replace the License Key, prior to BIMEC providing a replacement License Key to You, You must:
    1. (i)provide a statutory declaration signed by You to BIMEC that confirms You have permanently lost or destroyed the Software Product or License Key that is to be replaced and that You have not retained the Software Product or License Key in any form nor included it with any other software or system owned, operated or controlled by You; and
    2. (ii)comply with any other direction of BIMEC related to the replacement.
  5. If the License Key is faulty, and provided that such fault is attributable to an act or omission by BIMEC, BIMEC will replace the License Key if the faulty License Key is returned within the warranty period specified by BIMEC. Subject to Section 9 “Warranties” below, if the faulty License Key is not returned within said warranty period, BIMEC will replace the License Key upon payment by You of an administration fee to be advised by BIMEC at the time.
  6. When applicable as per Section 1 above, the License Key might be rendered unusable (with or without prior warning) upon expiry of the trial period or of the limited period of time for which the license was granted to You.
7. TITLE
  1. The Software Product, as well as all rights, title, interest, technology and know-how, whether patented or not, embodied in the Software Product, as well as all industrial and/or intellectual property rights attached to the Software Product, including but not limited to copyright, shall remain the sole property of BIMEC, to the exclusion of any third party software embedded in the Software Product or otherwise provided to You with the Software Product.
  2. Nothing in this EULA shall be deemed to convey to You any of BIMEC’s proprietary rights in the Software Product; all rights not specifically granted in this EULA are reserved by BIMEC does not sell the Software Product to You but only grants You the license rights defined in this EULA.
  3. All industrial and/or intellectual property rights pertaining to any third party software embedded in the Software Product or otherwise provided to You with the Software Product shall remain vested in the relevant third party and there will be no deemed or implied transfer of ownership to You of such third party proprietary rights.
  4. Should You become aware of any infringement to the proprietary rights of BIMEC on the Software Product, You shall immediately inform BIMEC of such infringement and provide all relevant information required by BIMEC to defend its interests.
8. TRADEMARKSBIMEC and other trademarks contained in the Software Product are registered trademarks of the Schneider Electric Industries SAS and its licensors, suppliers, or other third parties. Except as otherwise expressly prescribed by statute under applicable law, You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software Product. This EULA does not authorise You to use any names or trademarks of BIMEC or its authorised resellers.
9. WARRANTIES
  1. BIMEC warrants that it is entitled to license and otherwise make available the Software Product and Documentation to You in accordance with the terms and conditions set out in the EULA. Notwithstanding the foregoing, no warranties shall apply to the license types referred to in Section 3.
  2. The warranty period shall be of ninety (90) days from the date of delivery of the Software Product to You.
  3. Within such warranty period BIMEC warrants that the Software Product will perform substantially in accordance with its specifications as described in the Documentation.BIMEC’s sole obligation and Your sole remedy with respect to the foregoing limited warranty shall be, at BIMEC’s option to (i) fix the defect or non-compliance, (ii) replace the defective Software Product, the medium or the License Key without charge to You, or (iii) refund amounts received for the affected subscription and terminate such subscription provided that (x) You give notice of the defect to BIMEC within the above mentioned warranty period, and (y) the defect does not fall under the exclusions set under Section 9.4 below.
  4. BIMEC’s warranty shall be excluded to the extent the Software Product, its medium or License Key has been altered or fails to perform in any way, as the result of Your negligent or unauthorized use such as for instance but not limited to the use of the Software Product with third party products (hardware, software, firmware or operating system) which are not intended by BIMEC for use with the Software Product, or the utilization of an improper hardware or software key (if applicable) with the Software Product, or the unauthorized maintenance of the Software Product.Any replacement Software Product, media or License Key supplied to You pursuant to Section 9.3 hereinabove will be warranted for the remainder of the original ninety (90) warranty period or thirty (30) days, whichever is longer. Laws of some countries (either on federal or state level) do not allow limitations on duration of an express or implied warranty, so the above or any other limitation provided herein may not apply to You. In such event, such warranties are limited to the minimum warranty period legally allowed in said countries.
  5. BIMEC’s warranty shall also be excluded in case of defect or malfunction of the Software Product, to the extent such defect or malfunction could have been prevented by implementing the Software Product update or upgrade made available by BIMEC pursuant to Section 4, which You were entitled and encouraged to do.
  6. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW (ON BOTH FEDERAL AND STATE LEVEL, WHEN APPLICABLE), BIMEC MAKES NO OTHER WARRANTY THAN THOSE CONTAINED IN THIS SECTION 9 AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, AS TO THE SOFTWARE PRODUCT, ITS UPDATES AND ITS DOCUMENTATION, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE OR SAMPLE. FURTHER, WHILE BIMEC HAS TAKEN REASONABLE STEPS TO ENSURE THE ACCURACY OF THE INFORMATION CONTAINED IN OR SHOWN BY THE SOFTWARE PRODUCT AND ITS DOCUMENTATION, BIMEC MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO WHETHER THE SOFTWARE PRODUCT OR ANY INFORMATION CONTAINED IN OR SHOWN BY THE SOFTWARE PRODUCT AND ITS DOCUMENTATION WILL MEET YOUR REQUIREMENTS, EXPECTATIONS OR PURPOSES OR THE OPERATION OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SOFTWARE PRODUCT WILL BE PROTECTED AGAINST ALL POSSIBLE SECURITY THREATS, INTERNET THREATS OR OTHER THREATS OR INTERRUPTIONS.
  7. No oral or written information, statement, opinion or advice allegedly given by BIMEC, its authorized resellers, agents or employees, or anyone else on its behalf, shall create any liability or in any way extend or vary the scope of the warranties expressed in this EULA.
10. LIABILITIES
  1. You expressly acknowledge and accept that Your use of the Software Product and the performance, fitness and/or accuracy of the Software Product for any application, environment or purpose within or for which You shall use the Software Product, is and shall remain Your sole and full responsibility, unless BIMEC has expressly agreed upon such application, environment or purpose and has provided You express warranties as to the use, performance, fitness and/or accuracy of the Software Product when used within such agreed environment and for such agreed application or purpose. To the maximum extent permitted by applicable law, the Software Product is provided “as is”, with all faults and without warranty of any kind not contained in Section 9.
  2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR IN THE ORDER CONFIRMATION, IN NO EVENT SHALL BIMEC NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE PRODUCT, INCLUDING BUT NOT LIMITED TO BIMEC’S LICENSORS, BE LIABLE FOR ANY INDIRECT, INTANGIBLE, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS, EXPENSE OR CAUSE OF ACTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, BUSINESS GOODWILL, LOSS OF DATA OR FOR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THIS EULA, OR THE USE, INABILITY TO USE OR MISUSE OF THE SOFTWARE PRODUCT, EVEN IF BIMEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  3. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR IN THE ORDER CONFIRMATION, BIMEC’S AGGREGATE LIABILITY FOR DAMAGES AND EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE USE, INABILITY TO USE OR MISUSE OF THE SOFTWARE PRODUCT, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE SHALL IN NO CASE EXCEED THE TOTAL AMOUNT PAID BY YOU TO LICENSE THE SOFTWARE PRODUCT WHICH CAUSED THE DAMAGES OR EXPENSES.
  4. You shall indemnify and hold BIMEC harmless from any and all claims, damages, demands or proceedings (including attorney’s fees) brought against BIMEC or the Schneider Electric Industries SAS Group of Companies, including those brought by any third party arising out of or in connection with the use, inability to use or misuse of the Software Product by You, and whether based in contract, warranty, tort (including negligence), strict liability, statute or otherwise, unless and to the extent any such claim resulted from BIMEC’s non-fulfillment of the warranty set out in Section 9.1.
  5. The license granted under this EULA does not cover any modification, update, translation or adaptation, whether authorized or not, that might have been made to the Software Product by any person other than BIMEC where the Software Product is supplied along with a third party product. Such modifications shall be governed by the terms of license issued by such third party. BIMEC shall in no case be liable, whether in contract, warranty, tort (including negligence), strict liability, statute or otherwise, for damages or consequences arising out of or in connection with said modification, update, translation or adaptation and makes no representation or warranty in connection therewith.
  6. Notwithstanding any other term of this EULA, BIMEC’s liability arising out of this EULA is reduced proportionally to the extent to which the act or omission of You or any other third person contributed to the loss or damage incurred.
  7. In case the Software Product is intended as per its Documentation to be used for the purpose of collecting, storing and/or processing data such as but not limited to personal individual information, it is Your sole and full responsibility when making such use of the Software that You comply with any applicable data protection laws and regulations. In no event shall BIMEC be held liable for Your use of the data collected, stored or processed by the Software or Your non-compliance with any applicable data protection laws and regulations and You shall indemnify and hold BIMEC harmless from any and all claims, damages, demands or proceedings (including attorney’s fees) brought against BIMEC, including those brought by any third party, arising out of or in connection with any breach by You of any such laws or regulations.
  8. The limitations or exclusions of warranties and liability contained in this EULA shall apply only to the extent permitted by the law applicable to this EULA and, in particular, do not affect or prejudice the statutory rights which, as the case may be, will benefit You under any mandatory or public order laws or regulation applicable in any such country (on either federal or state level, when applicable).
  9. In case the Software Product was furnished to You by any authorized reseller or other sales representative or another third party supplying the Software Product with or without a third party product, BIMEC shall in no event be a party to any purchase order or other agreement between You and such third party and shall not assume or otherwise bear any liability thereunder, with the consequence that any and all claims You may have in relation to the Software Products shall be directed at such third party and shall be subject to the liability sections in any purchase order or other agreement between You and such third party. BIMEC shall assume no liability whatsoever under such sections or be bound by their wording.
  10. Subject to the limitations of liability set forth in Sections 10.2 and 10.3 of this EULA, BIMEC will defend and indemnify You against a third party claim that the Software Products infringe any copyright enforceable in the jurisdiction where BIMEC has its registered office or principal place of business, or misappropriates any trade secret protected under the laws of such jurisdiction (the “Included Jurisdiction”), provided that: (i) You notify BIMEC in writing within thirty (30) days of the claim; (ii) BIMEC has sole control of the defense and all related settlement negotiations; and (iii) You provide BIMEC with the assistance, information and authority necessary in order for BIMEC to perform its obligations under this Section.BIMEC will have no obligation to You under this Section relating to claims which arise outside of the Included Jurisdiction, nor for any claims not expressly set out in Section 10.10 above.If the Software Products are held, or are believed by BIMEC, to infringe, then BIMEC will have the option, at its expense, to: (i) modify the Software Products to be noninfringing; or (ii) obtain for You a license to continue using the Software Products. If, in BIMEC’s sole discretion, it is not economically or commercially reasonable to perform either of the above options then BIMEC may terminate the license for the infringing Software Products and refund to You the license fee You paid to BIMEC for the infringing Software Products.The foregoing BIMEC obligations do not apply when the claim of infringement results from or is related to: (i) Software Products provided pursuant to Your designs, drawings or specifications; (ii) Software Products stored, used or maintained other than in accordance with BIMEC’s instructions or recommendations or other than for Your internal business purposes; (iii) claims of infringement resulting from combining the Software Products provided hereunder with any other item not furnished by BIMEC; (iv) modifications to the Software Products without the prior written consent of BIMEC; (v) software or products supplied or designed by You or third parties; or (vi) Your failure to use corrections or enhancements made available by BIMEC.
    This Section 10.10 states BIMEC’s entire liability and Your sole and exclusive remedy for infringement.
11. THIRD PARTY SOFTWARE
  1. The Software Product may require access to a third party software(s), in unmodified or modified form. In such case BIMEC shall make such information available to You and You will be required to have license or subscription to such third party software(s).
  2. By accepting this EULA, You are also accepting the terms and conditions of the software licenses from any third party (hereinafter “Alternative Licenses”) owning the intellectual property rights in said third party software(s), and any use You will make of any such third party software(s) being part of the Software Product is subject to the terms of those Alternative Licenses. Further to the above, in relation to parts of the Software Product that are subject to Alternative Licenses, BIMEC’s liability shall be further limited in accordance with the terms and conditions of such Alternative License and BIMEC will in no event be subject to a wider or more substantial liability than what is evident from such Alternative Licenses, unless and to the extent applicable mandatory law requires otherwise.
  3. Further, the Software Product may contain code, including third party code, for which BIMEC is required to provide attribution. Some of this code may be released under Alternative License terms. Such code is not licensed under this EULA and shall be subject only to the Alternative License which shall constitute the sole license for such code and shall govern the relation between You and the alternative licensor. This EULA does not alter any rights or obligations You may have under these Alternative Licenses. BIMEC provides no warranty whatsoever in relation to code subject to such Alternative Licenses, unless and to the extent applicable mandatory law requires otherwise.
  4. If you wish to use the Software Product in a specific combination with other software or devices as may be intended by You, You must, at Your own risk and expense, acquire and maintain any such other software or devices, including proper licenses from such third parties. If You do not acquire and maintain appropriate third party licenses and if this somehow results in a third party raising a claim against BIMEC, You shall indemnify BIMEC against any such third party claim. In case the Software Product includes access to a software development kit (hereinafter “SDK”) which allows the development of any interface between third party software and the Software Product, BIMEC shall not be responsible for any development performed by You through the use of SDK, and BIMEC shall have no responsibility to provide You any support in relation thereto and shall not be liable for Your use of SDK or any damages it may cause to You or any third party.
  5. If Your use of SDK somehow results in a third party raising a claim against BIMEC, You shall indemnify BIMEC against any such third party claim.
12. DATA PROTECTION/CONSENT TO USE DATA
  1. With respect to the processing of any personal data under or in relation to this EULA or the use of the Software Product, each party agrees to comply with its respective obligations under any local applicable data protection laws or regulations in the relevant jurisdiction.
  2. In addition to the Software Update Utility described in Section 5.3, You acknowledge that some Software Products may include analytic and diagnostic features which enable BIMEC to gather technical and End User information from the Software Product. You agree that BIMEC may collect and use such technical and End User information for analytic and diagnostic purposes and to improve the user experience with the Software Product and/or with other products and services offered by BIMEC. If any of the information so collected contains personal information (such as email address, username and password or location) BIMEC will process such information in accordance with Schneider Electric’s Privacy Policy which is available at https://www.se.com/us/en/about-us/legal/data-privacy.jsp.
13. AUDIT
  1. You agree to make all applicable records available for review by BIMEC during Your normal business hours so as to permit BIMEC (upon reasonable written notice to You) to verify Your compliance with the terms and conditions of this EULA. Further, You agree that upon the request of BIMEC or BIMEC’s authorized representative, You will promptly document and certify in writing to BIMEC that Your and Your authorized users’ use of the Software Product complies with the terms and conditions of this EULA.
  2. BIMEC may (upon reasonable written notice) inspect Your use of the Software Product during Your normal business hours to ensure Your compliance with this EULA. If the results of any such review or inspection indicate Your unlicensed or non-compliant use of the Software Product or the underpayment by You of applicable fees (if any) contractually due and payable to BIMEC, You shall: (i) immediately pay sufficient fees to cover Your actual use of the Software Product, or such amounts of fees remaining due to BIMEC and (ii) reimburse BIMEC for the cost of such review or inspection.
14. EXPORT CONTROLThe export of products, software, technology or information may be subject to control or restriction by applicable laws or regulations on the control of export, including but not limited to the United States Export Administration Act and the regulations there under, and the European Union Regulation 428/2009 applicable to dual use and cryptographic products and technologies. You are solely responsible for determining the existence and application of any such law or regulation to any proposed export of the Software Product by You or Your representatives and for performing any declaration or obtaining any required authorisation in relation therewith. You agree not to export the Software Product from any country in violation of any applicable legal or regulatory obligations or restrictions on that export. In the event the aforementioned legal or regulatory obligations or restrictions are violated by You or any of Your representatives in relation with the export of the Software Product, You shall indemnify and hold BIMEC harmless from any claims, losses, costs or expenses and compensate the same against any damages which any third party (including but not limited to governmental and/or international authorities and/or organizations) will claim against BIMEC as the result of any such violation by You or Your representative(s).
15. ASSIGNMENTYour rights or obligations under this EULA may not be sold, sub-licensed, rented, assigned, delegated, transferred, or otherwise conveyed by You or Your representatives without BIMEC’s prior express written consent. BIMEC may assign this license to any company within the Schneider Electric Industries SAS of companies or to any company it may acquire control of or merge with.
16. DURATION AND TERMINATION
  1. The license right granted to You under this EULA shall come into effect as of the date of Your acceptance of the terms hereof and shall remain effective unless such license right expires or terminates when (i) such license right was granted to You for a limited period of time in accordance with Section 2 and such limited time period expires, or (ii) such license right was granted to You under a trial period in accordance with Section 2 and You do not further activate it upon expiry of said trial period as per Section 2, (iii) this EULA is terminated by either BIMEC or You with immediate effect if, respectively, You or BIMEC fail to comply with any of its obligations under this EULA.
  2. Upon expiration or termination of the license right granted to You hereunder, You undertake to immediately discontinue use of the Software Product and You must (i) if the Software Product has been provided to You as a physical copy, destroy and delete the Software Product and related copies and data, including without limitation those stored on Your computer hard disks or servers, including all accompanying printed materials along with their containers to the place from which You obtained the Software Product, and (ii) if the Software Product has been provided to You as a download, delete or expunge the Software Product, inclusive all related files and any other electronic material, from Your computer, hard disks, servers or other Device containing it. For both (i) and (ii) You shall upon the request from BIMEC provide BIMEC with a written certification that You have carried out the required actions set out in this Section 16.2.
  3. Termination of the license granted to You hereunder does not affect any rights or remedies which may have accrued before said termination to the benefit of BIMEC under this EULA, at law or otherwise.
17. MISCELLANEOUS
  1. This EULA, including its Appendices, constitutes the entire agreement between You and BIMEC in relation to Your right to use the Software Product and replaces any previous agreement or understanding, whether oral, electronic, or written, in relation with the same subject matter. Documentation forms an integral part of the license granted under this EULA. In case of a discrepancy between the terms of this EULA and the provisions of the Documentation, the terms of this EULA shall prevail. Should they differ, the terms of the printed version of this EULA, which may be supplied with the Software Product package, shall prevail over those that may be read on a computer screen.
  2. Should any of the provisions of this EULA be held invalid, illegal or unenforceable by a competent jurisdiction, You and BIMEC shall take all reasonable steps in order to modify such provision to render it valid and enforceable, bearing in mind their original intentions, and such provision as modified shall be fully enforced by You and BIMEC; all other provisions shall remain valid and unaffected by such declared invalidity, illegality or non-enforceability.
  3. No failure or delay on the part of either You or BIMEC in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.
  4. Headings in this EULA are just for ease of reference and will not affect its interpretation.
  5. Words expressed in the singular include the plural and vice versa.
  6. If You provide BIMEC with any ideas, concepts, know-how, techniques, suggestions, recommendations, or requested improvements, changes or modifications related to the Software Product or related to any other BIMEC products or services (collectively, the “Feedback”) then You grant to BIMEC a non-exclusive, worldwide, unrestricted, perpetual, irrevocable, royalty-free, fully-paid, assignable, transferable, sub-licensable, and unlimited license to use, reproduce, display, perform, modify, market, sell, lease, transmit and distribute (directly and/or indirectly) the Feedback to BIMEC’s employees, affiliates, agents, contractors, distributors, resellers, partners, customers, end users, and any and all third parties. The license rights granted to BIMEC in this Section also include the rights to create derivative works and embed and/or bundle the Feedback in any BIMEC products or services.
  7. Section 7, 8, 9, 10, 11, 12 and 14 of this EULA shall survive termination of this EULA or expiration of the license right granted to You under this EULA in accordance with Section 1. Furthermore, provisions that by their nature are intended to survive termination or expiration of this EULA and the license right granted to You hereunder, shall survive such termination or expiration. Additionally, all of Your indemnity obligations set forth in this EULA shall survive termination or expiration of this EULA.
18. APPLICABLE LAW & DISPUTES
  1. This EULA shall be exclusively governed by the laws of the state of Delaware, USA, to the exclusion of that jurisdiction’s conflict of law rules. To the extent possible, BIMEC and You agree that the United Nations Convention on the International Sale of Goods shall not apply to this EULA.
  2. Except as otherwise stated in Section 18.3 below, all disputes arising out of or in connection with this EULA shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with said Rules. The arbitration shall be conducted in the English language in the country where BIMEC has its registered office or principal place of business. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR THE RULES OF ARBITRATION, THE ARBITRATOR IS NOT EMPOWERED TO AWARD DAMAGES IN EXCESS OF THE COMPENSATORY DAMAGES (INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPERT WITNESS FEES) OR IN EXCESS OF THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN THIS EULA, AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO RECOVER SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, PUNITIVE DAMAGES), IN ANY FORUM. THE ARBITRATOR WILL BE REQUIRED TO FOLLOW THE APPLICABLE LAW AS SET FORTH IN SECTION 18.1 AND FOLLOW THE TERMS OF THIS EULA. The arbitrator may award equitable relief in those circumstances where monetary damages would be inadequate, however, in such cases, BIMEC may avail itself of the right to seek relief from a court of competent jurisdiction in accordance with Section 18.3 below. The successful or prevailing party will be entitled to recover its reasonable attorneys’ fees, expert witness fees and other costs of arbitration, in addition to such other relief to which it may be entitled.
  3. You acknowledge and accept that BIMEC will be irreparably damaged (and damages at law may be an inadequate remedy) if You breach any provision of this EULA and such provision is not specifically enforced. Therefore, in the event of a breach or threatened breach by You of this EULA, BIMEC shall be entitled, in addition to all other rights or remedies, to seek from a court with competent jurisdiction, (a) an injunction or other injunctive relief restraining such breach, without being required to show any actual damage or to post an injunction or other bond; or (b) a decree for specific performance of the applicable provision of this Agreement; or (c) both to the extent permitted by applicable law in the country where BIMEC has its registered office or principal place of business and/or, as relevant in the context, where You will install, copy, run or otherwise use the Software Product, on either federal or state level when applicable.
19. LEGAL EFFECTIn specific jurisdictions, as stated in Appendix 1 to this EULA, different regulations may impose different terms to apply between BIMEC and You in relation with Your use of the Software. All the terms of this EULA that are not amended by the terms defined in said jurisdictions as stated in Appendix 1 shall apply between BIMEC and You in such jurisdictions.

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APPENDIX 1 TO END-USER LICENSE AGREEMENT

SPECIFIC REGULATIONS / TERMS IN VARIOUS JURISDICTIONS

USA:

In complement to what is stated in Section 2 “Restrictions”, a) – e) above:

The Software Product is a “Commercial Item(s),” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 222.7202-1 through § 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA. Manufacturer is BIMEC.

ARGENTINA:

Subsection 9.2 of Section 9 “Warranties”, shall be replaced as follows:

9.2 The warranty period shall be of one hundred and eighty (180) days from the date of delivery of the Software Product to You.

The language in which the arbitration mentioned in Subsection 18.2 of Section 18 “Applicable Law & Disputes” shall be conducted shall be Spanish.

AUSTRALIA:

Subsection 9.6 of Section 9 “Warranties” shall be replaced as follows:

9.6 Certain legislation, including the Australian Consumer Law, may imply warranties or conditions or impose guarantees or obligations upon BIMEC which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. Subject to this section 9.6 BIMEC limits its warranty in respect of any claim under the provisions to, at BIMEC’s option:

1. 1. the replacement of Software Products or the supply of equivalent Software Products;
  2. the repair of the Software Products;
  3. the payment of the cost of replacing the Software Products or of acquiring equivalent Software Products; or
  4. the payment of the cost of having the Software Products repaired.

BRAZIL:

Subsection 2.2 (v) of Section 2 “Restrictions”, shall be replaced as follows:

(v) directly or indirectly, export, re-export, download, or ship the Software Product in violation of the laws and regulations of the U.S.A. or the applicable jurisdiction in which You use or are downloading the Software Product, in specially in violation of the Law n. 9.609 dated February 19, 1998 and regulations of the Brazil.

CANADA:

The following Sections shall be added:

Application of Local Mandatory Laws

The Parties do not intend that execution of this EULA to override or exclude the application of any mandatory local laws or legislation. The parties further agree to execute any necessary amendments to take into account any mandatory local laws or legislation applicable at the effective date.

Langue Français / French Language

Les parties aux présentes ont demandé que les Conditions de vente soient rédigées en langue anglaise. You agree to this Eula be drawn up in the English language only.

GERMANY

Section 9 “Warranties” shall be replaced as follows:

1. 1. WARRANTIES
    1. BIMEC warrants that for a period of twelve (12) months from the date of its delivery to You by BIMEC or its authorised reseller (or any other warranty period depending upon the Software Product’s reference and its related description available from BIMEC website), (i) the Software Product will perform substantially in accordance with its specifications as described in the Documentation, and (ii) the medium on which the Software Product is provided to You (if provided under a tangible form) and the License Key (if any) will be free from defects in materials and workmanship.
    2. If the Software Product does not function as warranted during the warranty period BIMEC will, at BIMEC’s option either fix the defect or non-compliance or replace the defective Software Product, the medium or the License Key without charge to You, provided that (i) You give notice of the defect to BIMEC or its authorised reseller within the above mentioned warranty period, and (ii) the defect does not fall under the exclusions set under Section 9.4 below. In the event BIMEC is not able to remedy a defect or non-compliance during the warranty period after having had reasonable opportunity to do so, You may either adequately reduce the fees paid or – unless the defect or non-compliance is non-material – rescind from the contract for the affected Software Product.
    3. BIMEC’s warranty shall be excluded to the extent the Software Product, its medium or License Key has been altered without prior written authorization by BIMEC or fails to perform in any way, as the result of Your negligent or unauthorized use such as, for instance but not limited to, the use of the Software Product with third party products (hardware, software, firmware or operating system) which are not intended by BIMEC for use with the Software Product, or the utilization of an improper hardware or software key (if applicable) with the Software Product, or the unauthorized maintenance of the Software Product.
    4. Any replacement Software Product, media or License Key supplied to You pursuant to Section 9.1 hereinabove will be warranted for the remainder of the original warranty period or six (6) months, whichever is longer.
    5. BIMEC’s warranty shall also be excluded in case of defect or malfunction of the Software Product, to the extent such defect or malfunction could have been prevented by implementing the Software Product update or upgrade made available by BIMEC pursuant to Section 4, which You were entitled and encouraged to do.
    6. The foregoing defines BIMEC’s entire warranty obligations to You except as otherwise required by applicable statutory law.
    7. No oral or written information, statement, opinion or advice allegedly given by BIMEC, its authorized resellers, agents or employees, or anyone else on its behalf, shall create any liability or in any way extend or vary the scope of the warranties expressed in this EULA.

Subsections 10.1 to 10.3 of Section 10 “Liabilities” shall be replaced as follows:

1. 1. LIABILITIES
    1. Unless stipulated otherwise in the EULA including the following provisions, BIMEC shall be liable for breaches of contractual and non-contractual duties pursuant to the applicable statutory provisions.
    2. BIMEC can be held liable for damages – irrespective of their legal grounds – in cases of intent and gross negligence. In cases of slight negligence, BIMEC shall only be liable
      1. for damages resulting from injuries to life, body or health,
      2. for damages resulting from an infringement of an essential contractual obligation (an obligation which must be fulfilled to enable a due performance of the contract and on whose fulfillment the contractual partner generally relies and may rely); however, in this case BIMEC`s liability shall be limited to compensation for the foreseeable, typically occurring damage,
      3. for damages resulting from a loss of data BIMEC`s liability shall be limited to the typical recovery effort that a diligent user would incur using regularly and risk-adequate created backup copies.
    3. The limitations of liability pursuant to Section 2 shall not apply where BIMEC fraudulently concealed a defect or guaranteed the quality of the Software Products. The same applies to claims of You pursuant to the German Product Liability Act (ProdHaftG). An exclusion or restriction of BIMEC s liability also applies with respect to BIMEC`s statutory representatives and vicarious agents.

PERU:

The third paragraph of the introduction IMPORTANT – READ CAREFULLY shall be replaced as follows:

This EULA is a legal agreement between your corporation, company or other legal entity, to which the Software Product has been provided, (hereinafter “You”), and BIMEC (as defined hereunder). You declare that any person acting on your behalf or in your interest and completing the installation of the Software Product has the mandate or legal authority to bind You and confirm Your acceptance of the terms and conditions of this EULA. If a system integrator, contractor, consultant or any other party installs or uses the Software Product on Your behalf, in your interest or prior to Your use of the Software Product, such party will be deemed to be Your agent or representative acting on Your behalf, and You will be deemed to have accepted all of the terms and conditions contained in this EULA as if You had installed or used the Software Product Yourself. If You are a third party (e.g. a system integrator, contractor, consultant or any other third party) installing or using the Software Product on behalf of, in the interest of or prior to an end user- or licensee- of the Software Product (hereinafter “End User”), it is Your responsibility to ascertain that You have obtained the mandate or legal authority to bind the End User to this EULA.

Subsection 10.2 of Section 10 Liabilities shall be replaced as follows:

10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR IN THE ORDER CONFIRMATION, IN NO EVENT SHALL BIMEC NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE PRODUCT, INCLUDING BUT NOT LIMITED TO BIMEC’S LICENSORS, BE LIABLE FOR ANY INDIRECT, INTANGIBLE, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS, EXPENSE OR CAUSE OF ACTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF CHANCE, LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, BUSINESS GOODWILL, LOSS OF DATA, MORAL DAMAGE OR FOR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE OR MISUSE OF THE SOFTWARE PRODUCT, EVEN IF BIMEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

The following sentence will be inserted at the end of Subsection 10.7 of Section 10 Liabilities:

You declare that BIMEC does not perform any processing on data on your behalf or in your interest and, therefore, must not be considered as a data processor.

Subsection 18.1 of Section 18 “Applicable Law & Disputes” shall be replaced as follows:

18.1 This EULA shall be exclusively governed by the laws of the Republic of Peru, to the exclusion of said country’s conflict of law rules. To the extent possible, BIMEC and You agree that the United Nations Convention on the International Sale of Goods shall not apply to this EULA.

POLAND:

Subsection 10.8 of Section 10 “Liabilities” shall be replaced as follows:

10.8 The limitations or exclusions of warranties and liability contained in this EULA shall apply only to the extent permitted by the law applicable to this EULA and, in particular, do not affect or prejudice the statutory rights which, as the case may be, will benefit You under any mandatory or public order laws or regulation applicable in any such country (on either federal or state level, when applicable). In particular BIMEC can be held liable for damages – irrespective of their legal grounds – in cases of intent and gross negligence or damages resulting from injuries to life, body or health.

Section 15 “Assignment” shall be replaced as follows:

Your rights or obligations under this EULA may be sold, sub-licensed, rented, assigned, delegated, transferred or otherwise conveyed by You or Your representatives only upon BIMEC’s prior express written consent otherwise being null and void. BIMEC may assign this license to any company within the Schneider Electric Industries SAS Group of Companies or to any company it may acquire control of or merge with.

Subsection 18.2 of Section 18 “Applicable Law & Disputes” shall be replaced as follows:

18.2 Without prejudice the statutory rights which, as the case may be, will benefit You under any mandatory or public order laws or regulation applicable, all disputes arising out of or in connection with this EULA shall be submitted to the International Court of Arbitration of the International Chamber of Commerce and shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with said Rules. The arbitration shall be conducted in the English language in the country where BIMEC has its registered office or principal place of business. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR THE RULES OF ARBITRATION, THE COURT IS NOT EMPOWERED TO AWARD DAMAGES IN EXCESS OF THE COMPENSATORY DAMAGES (INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPERT WITNESS FEES) OR IN EXCESS OF THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN THIS EULA, AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO RECOVER SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, PUNITIVE DAMAGES), IN ANY FORUM. THE COURT WILL BE REQUIRED TO FOLLOW THE APPLICABLE LAW AS SET FORTH IN SECTION 18.1 AND FOLLOW THE TERMS OF THIS EULA. The court may award equitable relief in those circumstances where monetary damages would be inadequate. The successful or prevailing party will be entitled to recover its reasonable attorneys’ fees, expert witness fees and other costs of proceedings, in addition to such other relief to which it may be entitled.

RUSSIA:

Section 9 “Warranties” shall be replaced as follows:

9.1 All other warranties, whether express or implied, statutory or otherwise are excluded.

9.2 Although BIMEC has taken reasonable steps to scan the Software Product for virus, bugs and other anomalies using commercially available means, BIMEC does not represent nor warrant that the Software Product is error free nor, if such errors exist, that they can be fixed. The Software Product under the above license is provided to You on an “as is” basis.

In complement to what is stated in Section 14 “Export Control” above:

The Software Product under this EULA contain or may contain components and/or technologies from the United States of America (“US”), the European Union (“EU”) and/or other nations. You acknowledge and agree that the supply, assignment and/or usage of the Software Product and/or the embedded technologies under this EULA shall fully comply with related applicable US, EU and other national and international export control laws and/or regulations. Unless applicable export license/s has been obtained from the relevant authority and the BIMEC has approved, the Software Product shall not (i) be exported and/or re-exported to any destination and party (may include but not limited to an individual, group and/or legal entity) restricted by the applicable export control laws and/or regulations; or (ii) be used for those purposes and fields restricted by the applicable export control laws and/or regulations. You also agree that the Software Product will not be used either directly or indirectly in any rocket systems or unmanned air vehicles; nor be used in any nuclear weapons delivery systems; and will not be used in any design, development, production or use for any weapons which may include but not limited to chemical, biological or nuclear weapons. If any necessary or advisable licenses, authorizations or approvals are not obtained, whether arising from inaction by any relevant government authority or otherwise, or if any such licenses, authorizations or approvals are denied or revoked, or if the applicable export control laws and/or regulations would prohibit BIMEC from fulfilling any order, or would in BIMEC’s judgment otherwise expose BIMEC to a risk of liability under the applicable export control laws and/or regulations if it fulfilled the order, BIMEC shall be excused from all obligations under such order and/or this EULA.

In complement to what is stated in Section 17 “Miscellaneous” above:

The parties of this EULA accept the performance of procedures for the prevention of corruption and monitor their compliance. The parties shall take all reasonable efforts to minimize the risk of business with counterparties, which may be involved in corrupt practices and provide mutual assistance in order to prevent corruption. With this the parties shall ensure the implementation of audit procedures in order to prevent risk of the parties’ involvement in corrupt practices.

Subsection 18.2 of Section 18 “Applicable Law & Disputes” shall be replaced as follows:

18.2 All disputes arising out of or in connection with this EULA shall be submitted to the Court on Intellectual Rights (Russia, Moscow).

UNITED KINGDOM AND IRELAND

The Country shall be United Kingdom and/or Ireland as applicable and all references to country, jurisdiction and applicable statutes shall be construed accordingly.

Subsection 10.2, 10.3 and 10.5 of Section 10 “Liabilities” shall be replaced as follows:

10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR IN THE ORDER CONFIRMATION, IN NO EVENT SHALL BIMEC NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE PRODUCT, INCLUDING BUT NOT LIMITED TO BIMEC’S LICENSORS, BE LIABLE FOR ANY INDIRECT, INTANGIBLE, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS, EXPENSE OR CAUSE OF ACTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PURSUANT TO AN INDEMNITY, STATUTE OR OTHERWISE, INCLUDINGOR FOR, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, BUSINESS GOODWILL, LOSS OF DATA OR FOR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE (WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THIS EULA, OR THE USE, INABILITY TO USE OR MISUSE OF THE SOFTWARE PRODUCT, EVEN IF BIMEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.”

10.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR IN THE ORDER CONFIRMATION, BIMEC’S TOTAL AGGREGATE LIABILITY FOR DAMAGES AND EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE USE, INABILITY TO USE OR MISUSE OF THE SOFTWARE PRODUCT, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE SHALL IN NO CASE EXCEED THE TOTAL AMOUNT PAID BY YOU TO LICENSE THE SOFTWARE PRODUCT WHICH CAUSED THE DAMAGES OR EXPENSES, PROVIDED THAT NOTHING SHALL LIMIT BIMEC’S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING OUT OF BIMEC’S NEGLIGENCE OR FOR FRAUD OR FRAUDOLENT MISREPRESENTATION

10.5 The license granted under this EULA does not cover any modification, update, translation or adaptation, whether authorized or not, that might have been made to the Software Product by any person other than BIMEC where the Software Product is supplied along with a third party product. Such modifications shall be governed by the terms of license issued by such third party. BIMEC shall in no case be liable, whether in contract, warranty, tort (including negligence), strict liability, pursuant to an indemnity, statute or otherwise, for damages or consequences arising out of or in connection with said modification, update, translation or adaptation and makes no representation or warranty in connection therewith.

A new subsection 17.7 to Section 17 “Miscellaneous” shall be inserted as follows:

17.7 “BIMEC will not be responsible or liable to You, or deemed in default or breach hereunder by reason of any failure or delay in the performance of our obligations hereunder where such failure or delay is due to strikes, labour disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Your equipment, loss and destruction of property, or any other circumstances or causes beyond BIMEC’s reasonable control.

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APPENDIX 2 TO END-USER LICENSE AGREEMENT

SPECIFIC TYPES OF LICENSE

Specific other use rights may be granted to You depending upon the type of license You have acquired.

Educational license. If You wish to acquire the Software Product for educational purpose only, please contact BIMEC’s organization or its authorized reseller serving Your country. In case the Software Product is identified as academic or educational software, You must be a qualified educational user to be entitled to use said Software Product; if You are not a qualified educational user, You have no rights under this EULA with respect to said academic or educational software. To determine whether You are a qualified educational user, please contact BIMEC’s organization or its authorized reseller serving Your country. Once licensed to use said academic or educational Software Product, You may not sell or transfer any such Software Product or sub-license Your license right to use the same to anyone except to another person who is qualified by BIMEC as a qualified educational user.

As used in this Section of EULA, the term ‘person’ shall be broadly interpreted to include without limitation any individual, any corporation, company or other legal entity.

License for Field-Test. If You have acquired a license for field-test purposes, You acknowledge and agree that the Software Product licensed to You under a field-test license is a pre-release software only. As such, said Software Product may not be fully functional and You assume the entire risk as to the results and performance of the Software Product. You may install and use the Software Product licensed to You under a field-test license on computers in Your workplace only for the purpose of testing said Software Product before it is commercialized by BIMEC and potentially identifying any errors, bugs or defects in said Software Product. You also agree to use reasonable efforts to provide Feedback to BIMEC regarding Your use of the Software Product, including a prompt report to BIMEC of errors, bugs or defects that You might find. Therefore, notwithstanding anything in this EULA to the contrary, You may not distribute or transfer any applications You create with the Software Product licensed to You under a field-test license. BIMEC will not update the Software Product licensed to You under a field-test license, nor provide support in relation thereto. The Software Product licensed to You under a field-test license may contain code that will, after a certain time period, deactivate the Software Product and render it unusable. Although said Software Product will attempt to warn You of the time frame in which it will be disabled, You acknowledge and agree that said Software Product may be deactivated or rendered unusable with or without warning. Upon such deactivation, this EULA will be considered terminated. Prior to deactivation of the Software Product, You may contact BIMEC to convert Your field-test license on the Software Product to a standard license governed by this EULA on the final release of said Software Product if and when available from BIMEC by paying to BIMEC the applicable license fee (if any) and obtaining from BIMEC the relevant activation code(s).

Early Adopter License. If You have acquired a license for early adoption (an “Early Adopter License”), You acknowledge and agree that the Software Product licensed to You under an Early Adopter License may include pre-release features (“Beta Functionality”). As such, said Beta Functionality may not be fully functional and You assume the entire risk as to the results and performance of the Beta Functionality. You may install and use the Software Product licensed to You under an Early Adopter License on computers in Your workplace for the purpose of testing the Beta Functionality before it is commercialized by BIMEC and potentially identifying any errors, bugs or defects in said Beta Functionality. You also agree to use reasonable efforts to provide Feedback to BIMEC regarding Your use of the Software Product, including a prompt report to BIMEC of errors, bugs or defects that You might find. Therefore, notwithstanding anything in this EULA to the contrary, You may not distribute or transfer any applications You create with the Software Product licensed to You under a field-test license. The Software Product licensed to You under a n Early Adopter License may contain code that will, after a certain time period, deactivate certain Beta Functionality of the Software Product and render such Beta Functionality unusable. Although said Software Product will attempt to warn You of the time frame in which it will be disabled, You acknowledge and agree that said Beta Functionality may be deactivated or rendered unusable with or without warning.

General Terms and Conditions

Contract TermsThese Standard Terms and Conditions of Sale (“Conditions of Sale”) shall apply to any purchase or procurement of Products or Services by the legal entity procuring such Products or Services (“Purchaser”) from the legal entity of the BIM-Electrical Corp division that provided the proposal or is selling the Products and Services (“BIM Electric”). To the extent that there is a conflict between these Conditions of Sale and a valid signed master agreement between the Purchaser and BIM Electric, the specific conflicting terms of the master agreement shall prevail. To the extent that there is a conflict between these Conditions of Sale and another set of BIM Electric terms and conditions issued to the Purchaser as part of the proposal or quotation process, the specific conflicting terms of the proposal or quotation document shall prevail. Any other variation from these Conditions of Sale shall require the signed consent of an authorized BIM Electric representative.
PricesUnless otherwise stated in an applicable quotation or proposal, all prices are subject to change without notice. In the event of a net price change and unless otherwise agreed to in writing, prices for orders scheduled for immediate release shall be those in effect at time of order entry. Prices for orders placed for future shipment without an agreed price and ship date will be billed at the pricing in effect as of the shipment date. All clerical errors are subject to correction.
Services Assumptions: BIM Electric’s work estimates are based on work performed during normal work hours (8 hours) between the hours of 06:00 and 18:00 local time, Monday to Friday, holidays excepted. Unless specified in writing the following are chargeable in addition to base rates: overtime or premium hours, travel costs, specialized tools and test goods, utility shutdowns, any delays or site issues not caused by BIM Electric, additional trips for postponement or delay. No on-site orientation, safety training, work required for site specific requirements is included in a quotation unless expressly specified by BIM Electric. Current rates are in BIM Electric’s then current BIM Electric Field Services Demand Labor Rates document. Field specialists bill a 4-hour minimum charge for travel where Services are performed in less than 4 hours, and an 8-hour minimum charge for Services otherwise.
TaxesUnless otherwise set out in BIM Electric’s proposal or quotation, prices do not include taxes, duties or any other governmental levies, all of which are payable by Purchaser. Except as may be otherwise provided in the relevant Purchase Order, the price excludes all present or future sales taxes, revenue or excise taxes, value-added taxes, import and export duties and any other taxes, surcharges or duties now existing or hereafter imposed by governmental authorities upon equipment and/or services quoted by BIM Electric. The Purchaser shall be responsible for all such taxes, duties and charges resulting from these Conditions of Sale or any associated purchase. BIM Electric is required to impose taxes on orders and shall invoice the Purchaser for such taxes and/or fees according to applicable law, statutes, or regulations, unless BIM Electric furnishes the Purchaser at the time of order with a properly completed exemption certificate(s) acceptable to the authorities imposing the tax or fees. Any changes in foreign exchange rates, sales taxes, customs tariffs or other taxes shall be chargeable to the Purchaser.
Terms of paymentTerms are net 30 days from date of invoice. Late payments will be subject to interest charges at the rate of two percent (2%) per month. Invoices for pro-rata payments become due on the date of shipment. If at Purchaser’s request, shipments are delayed beyond the scheduled date, payments for the Products and Services completed to date will be invoiced to the Purchaser, as a percentage of the total Purchase Order price when BIM Electric was originally prepared to ship. Products held for the Purchaser shall be at the risk and expense of the Purchaser. If completion of Services is delayed more than 30 days after originally scheduled delivery date and not caused solely by BIM Electric, BIM Electric reserves the right to ship all Products to the Purchaser who will accept responsibility for Products including payment. Failure to pay any applicable payment on its due date shall automatically cause all installment amounts to become payable and in addition to BIM Electric’s other lawful remedies, BIM Electric reserves the right to suspend or cancel the PO. If Purchaser fails to pay BIM Electric for the Products and Services, BIM Electric reserves the right to file in its sole discretion any liens, charges, security interests, or similar encumbrances against the applicable property, building, land, or Products and Services and Purchaser consents to such filings and registrations.
Delivery and ScheduleDates for delivery, schedule, or execution for Services or Products set out on a Purchase Order are subject to confirmation by BIM Electric and until such confirmation may change solely based on BIM Electric‘s circumstances. All confirmed dates are based on the prompt receipt by BIM Electric of all required information enabling achievement of such dates and BIM Electric reserves the right to change such dates in the event additional information is necessary or other information was not provided. DISCLAIMER: The Purchaser acknowledges that the Products or part thereof are produced in, or otherwise sourced from, or will be installed in areas already affected by, or that may be affected in the future by, the prevailing COVID-19 epidemics/pandemic and that the situation may trigger stoppage, hindrance or delays in BIM Electric ‘s (or its subcontractors) capacity to produce, deliver, install or service the products, irrespective of whether such stoppage, hindrance or delays are due to measures imposed by authorities or deliberately implemented by BIM Electric (or its subcontractors) as preventive or curative measures to avoid harmful contamination exposure of BIM Electric‘s (or its subcontractors’) employees. The Purchaser therefore recognizes that such circumstances shall be considered as a cause for excusable delay not exposing BIM Electric to contractual sanctions including without limitation, delay penalties, liquidated or other damages or termination for default.
Risk of lossUnless otherwise specifically agreed by the Parties, the Products are delivered Ex Works (Incoterms 2010) and the risk of loss or damage shall pass to the Purchaser upon collection of the Products by the first carrier at BIM Electric‘s premises, plants or warehouses. Delivery of Products by BIM Electric will be deemed to be made to the Purchaser upon obtaining a signed receipt from the carrier showing receipt of the Products in good order. Title passes on full payment.
SubstitutionsBIM Electric may furnish suitable substitutes for Products unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers, provided such substitutions do not adversely affect the technical soundness of the Products. BIM Electric assumes no liability for deviation from published dimensions and descriptive information not essential to proper performance of the Products.
ShortageClaims for shortages or errors must be submitted to BIM Electric within 30 days after invoice date, and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by the Purchaser.
InstallmentsBIM Electric reserves the right to make shipments in installments, unless otherwise expressly stipulated in a specific Purchase Order; and all such installments when separately invoiced shall be paid for when due per invoice without regard to subsequent shipments. Delay in shipment of any installment shall not relieve Purchaser of its obligation to accept remaining shipments.
Force MajeureBIM Electric will be excused from and not be liable for any non-performance of a Purchase Order if such delay or non-performance is due to any cause beyond the reasonable control of BIM Electric, or which BIM Electric could not reasonably foresee or reasonably provide against, and which prevents BIM Electric from carrying out the terms of the Purchase Order. This includes but is not limited to the following: pandemic, war, revolution, insurrection or hostilities (whether declared or not), riot, economic upheaval, civil commotion or uprising, flood, earthquake, tempest, hurricane, lightning or other natural disaster; fire or explosion; strike, lockout, or other industrial disturbance whether at BIM Electric or one of its suppliers; sabotage, accident, cyber attack, embargo, car shortage, wrecks or delays in transportation, non-delivery of materials or order or action of government authority. Any delay resulting from such cause shall extend the date of delivery accordingly. BIM Electric reserves the right to cancel a Purchase Order, if in its opinion such circumstances threaten or cause extended delay in the performance thereof.
Purchaser’s Cybersecurity ObligationsPurchaser’s Obligations for Its Systems: Purchaser is solely responsible for the implementation and maintenance of a comprehensive security program (“Security Program”) that contains reasonable and appropriate security measures and safeguards to protect its computer network, systems, machines, and data (collectively, “Systems”), including those Systems on which it runs the Products or which it uses with the Services, against Cyber Threats. “Cyber Threat” means any circumstance or event with the potential to adversely impact, compromise, damage, or disrupt Purchaser’s Systems or that may result in any unauthorized access, acquisition, loss, misuse, destruction, disclosure, and/or modification of Purchaser’s Systems, including any data, including through malware, hacking, or similar attacks.
Without limiting the foregoing, Purchaser shall at a minimum:
- have qualified and experienced personnel with appropriate expertise in cybersecurity maintain Purchaser’s Security Program, and have such personnel regularly monitor cyber intelligence feeds and security advisories applicable to Purchaser’s Systems or Purchaser’s industry;
- promptly update or patch its Systems or implement other appropriate measures based on any reported Cyber Threats and in compliance with any security notifications or bulletins, whether publicly disclosed on BIM Electric’s security notification webpage at https://www.se.com/ww/en/work/support/cybersecurity/security-notifications.jsp or otherwise provided to Purchaser;
- regularly monitor its Systems for possible Cyber Threats;
- regularly conduct vulnerability scanning, penetration testing, intrusion scanning, and other cybersecurity testing on its Systems; and
- meet the recommendations of BIM Electric’s Recommended Cybersecurity Best Practices, available at https://www.se.com/us/en/download/document/7EN52-0390/, as may be updated by BIM Electric from time to time, and then-current industry standards.
Purchaser’s Use of the Products, Software, and Services: BIM Electric may release Updates and Patches for its Products, Software, and Services from time to time. Purchaser shall promptly install any Updates and Patches for such Products, Software, or Services as soon as they are available in accordance with BIM Electric’s installation instructions and using the latest version of the Products or Software, where applicable. An “Update” means any software that contains a correction of errors in a Product, Software, or Service and/or minor enhancements or improvements for a Product, Software, or Service, but does not contain significant new features. A “Patch” is an Update that fixes a vulnerability in a Product, Software, or Service. Purchaser understands that failing to promptly and properly install Updates or Patches for the Products, Software, or Services may result in the Products, Software, or Services or Purchaser’s Systems becoming vulnerable to certain Cyber Threats or result in impaired functionality, and BIM Electric shall not be liable or responsible for any losses or damages that may result.
Identification of Cyber Threats: If Purchaser identifies or otherwise becomes aware of any vulnerabilities or other Cyber Threats relating to the Products, Software, or Services for which BIM Electric has not released a Patch, Purchaser shall promptly notify BIM Electric of such vulnerability or other Cyber Threat(s) via the BIM Electric Report a Vulnerability page (https://www.se.com/ww/en/work/support/cybersecurity/report-a-vulnerability.jsp#Customers) and further provide BIM Electric with any reasonably requested information relating to such vulnerability (collectively, “Feedback”). BIM Electric shall have a non-exclusive, perpetual and irrevocable right to use, display, reproduce, modify, and distribute the Feedback (including any confidential information or intellectual property contained therein) in whole or part, including to analyze and fix the vulnerability, to create Patches or Updates for its customers, and to otherwise modify its Products, Software, or Services, in any manner without restrictions, and without any obligation of attribution or compensation to Purchaser; provided, however, BIM Electric shall not publicly disclose Purchaser’s name in connection with such use or the Feedback (unless Purchaser consents otherwise). By submitting Feedback, Purchaser represents and warrants to BIM Electric that Purchaser has all necessary rights in and to such Feedback and all information it contains, including to grant the rights to BIM Electric described herein, and that such Feedback does not infringe any proprietary or other rights of third parties or contain any unlawful information.
Standard WarrantyBIM Electric warrants:
- Products manufactured by BIM Electric under its own brands and supplied by BIM Electric as part of the Purchase Order, if any, against defects in material and workmanship of those Products arising under normal use for a period of 12 months from the date of commissioning or 18 months from the date of shipment from BIM Electric, whichever occurs first.
- Services performed by BIM Electric‘s personnel as part of the Purchase Order, if any, will be performed by qualified personnel with care, skill and diligence, in accordance with the applicable generally accepted standards recognized by the industry for a period of 12 months from the date of invoice.
- Software provided with the Products will perform its essential functions during the warranty period applicable to the Products.
Exclusive Warranty Remedies: In the event of any warranty covered defects or deficiencies in Products in subsections (a) above, or Services in subs. (b) above, or Software in subs. (c) above, the sole and exclusive obligation of BIM Electric shall be to re-perform the Services, or repair or replace the defective Products or part of the Products, or provide an update to the Software to correct the non-conformance or replace the Software with the latest available version containing a correction, at BIM Electric’s sole discretion. BIM Electric shall have no other obligation to provide updates or revisions. The foregoing warranty coverage is contingent on Purchaser providing prompt notification to BIM Electric once such defect or deficiency is reasonably apparent to Purchaser.

Exclusions & Limitations: This warranty shall not apply (a) to Products or Software not manufactured by BIM Electric, (b) Services not provided directly by BIM Electric, (c) to Products, Software or Services that has been repaired or altered by anyone other than BIM Electric so as, in BIM Electric’s judgment, affects the same adversely, (d) Seller’s conformance with Buyer’s design of the Products, Software, or Services; or (e) to Products, Software or Services that appear to be subjected to negligence, accident, or damage by circumstances beyond BIM Electric’s control, or improper any non-BIM Electric operation, maintenance or storage, or to other than normal use or service. The foregoing warranties do not cover reimbursement for labor, transportation, removal, installation, temporary power, or any other expenses that may be incurred in connection with repair or replacement. THESE WARRANTIES, CONDITIONS, AND EXCLUSIONS ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS AND GUARANTEES (EXCEPT WARRANTIES OF TITLE), INCLUDING, BUT NOT LIMITED, TO IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. BIM ELECTRIC MAKES NO WARRANTY THAT THE PRODUCTS, SOFTWARE OR SERVICES WILL MEET PURCHASER’S REQUIREMENTS, OR THAT PURCHASER’S USE OF THE PRODUCTS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. BIM ELECTRIC DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT THE PRODUCTS, SOFTWARE OR SERVICES WILL BE SECURE OR FREE FROM VULNERABILITIES, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSIONS OR CYBER THREATS, AND BIM ELECTRIC DISCLAIMS ANY LIABILITY IN RELATION THERETO. EXCEPT AS MAY BE PROVIDED IN WRITING BY BIM ELECTRIC, BIM ELECTRIC SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES WHATSOEVER THAN AS STATED ABOVE WITH REGARD TO PRODUCTS, SOFTWARE AND SERVICES SOLD BY BIM ELECTRIC TO PURCHASER. BY USING THE PRODUCTS, SOFTWARE OR SERVICES, PURCHASER UNDERSTANDS THESE LIMITATIONS AND AGREES THAT PURCHASER ACCESSES AND USES THE PRODUCTS, SOFTWARE AND SERVICES AT PURCHASER’S OWN DISCRETION AND RISK AND THAT PURCHASER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO PURCHASER’S SYSTEMS OR ASSETS OR LOSSES THAT RESULT FROM SUCH ACCESS OR USE.

Non-BIM Electric Products, Software or Services: With respect to Products or Software not manufactured by BIM Electric, or Services provided by non-BIM Electric providers, the warranty obligations of BIM Electric shall in all respects conform and be limited to the warranty actually extended to BIM Electric by such non-BIM Electric supplier.
Return of ProductsNo Products may be returned without first obtaining BIM Electric’s written permission and a returned material identification tag. Returned Products must be of current manufacture, in the original packaging, unused, undamaged and in saleable condition. Returned Products must be securely packed to reach BIM Electric without damage and labeled with the return authorization number. For any returns, BIM Electric will be pay the carrier and deduct the freight charges from the credit unless if returns result from BIM Electric error, freight charges will be paid by BIM Electric. Any cost incurred by BIM Electric to put Products in first class condition will be charged to the Purchaser. Returns must originate from the original Purchaser account number. Returns will be credited at the original price paid as indicated on the invoice or Purchase Order associated to the Products being returned as provided by the Purchaser. If no invoice number or Purchase Order number is provided, then credit will be issued based on the into stock price in effect 12 months prior to date of return authorization and will also have an additional 25% processing fee applied. BIM Electric Products, which are listed in the current product list as returnable and which are accepted for credit, not involving a BIM Electric error, shall be assessed a restocking fee of 25% of the invoice price.
Intellectual PropertyBIM Electric retains ownership of all right, title and interest (including copyright and patent rights) in and to the intellectual property relating to Products and Services and work product relating to these. Nothing in these Conditions of Sale constitutes a transfer or conveyance of any right, title or interest in such intellectual property, including without limitation any software or firmware contained in those, except the limited right to use it as provided in the documentation. As to Products proposed and furnished by BIM Electric, BIM Electric shall defend any suit or proceeding brought against Purchaser so far as based on a claim that such Products constitute an infringement of any copyright, trademark or patent in the United States or Canada. This obligation shall be effective only if Purchaser shall have made all payments then due hereunder and if BIM Electric is notified promptly in writing and given authority, information, and assistance at BIM Electric’s expense for the defense of the same. In the event the use of such Products by Purchaser is enjoined in such a suit, BIM Electric shall, at its expense, and at its sole option, either (a) procure for the Purchaser the right to continue using such Products (b) modify such Products to render them non-infringing, or (c) replace such Products with non-infringing Products. BIM Electric will not be responsible for any compromise or settlement made without its written consent. The foregoing states the entire liability of BIM Electric for patent, trademark or copyright infringement, and in no event shall BIM Electric be liable if any infringement charge is based on the use of BIM Electric Products for a purpose other than that for which it was sold by BIM Electric. As to any Products or Services furnished by BIM Electric to Purchaser and manufactured or provided in accordance with designs proposed by Purchaser, the Purchaser shall indemnify BIM Electric against any award made against BIM Electric for patent, trademark, or copyright infringements.
SoftwareAny software or computer information, in whatever form, that is provided with Products manufactured by BIM Electric or as part of Services (collectively, the “Software”), is licensed to Purchaser solely pursuant to standard licenses of BIM Electric or its supplier of such Software, which licenses are hereby incorporated by reference and are available upon request. Purchaser shall not reverse engineer, decompile, disassemble or apply any process, technique, or procedure or make any attempt to ascertain or derive the source code of any Product, Software or Services.
LIMITATION OF LIABILITYNOTWITHSTANDING ANY PROVISION OF THESE CONDITIONS OF SALE OR ANY OTHER CONTRACT DOCUMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY, ITS OFFICERS, DIRECTORS, AFFILIATES OR EMPLOYEES BE LIABLE FOR ANY FORM OF INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PRODUCTION, LOSS OF PRODUCT, LOSS OF REVENUE OR PROFITS, OR LOSS OF DATA OR BUSINESS INFORMATION, WHETHER SUCH DAMAGES ARISE IN CONTRACT OR TORT, IRRESPECTIVE OF FAULT, NEGLIGENCE OR STRICT LIABILITY OR WHETHER SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THESE CONDITIONS OF SALE OR ANY OTHER CONTRACT DOCUMENT TO THE CONTRARY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF BIM ELECTRIC FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY PURCHASER TO BIM ELECTRIC FOR THE PRODUCT OR SERVICE GIVING RISE TO A CLAIM.
IndemnificationPurchaser agrees to indemnify, defend, and hold harmless BIM Electric from and against any and all claims, lawsuits, demands, actions, or other proceedings brought against it by any third party due to, arising out of, or related to (a) Purchaser’s use of Products, Software or Services in a manner not permitted by these Conditions of Sale, (b) Purchaser’s failure to comply with Section 11, including Purchaser’s failure maintain a Security Program in compliance with Section 11 or Purchaser’s failure to promptly and properly install Updates and Patches for the Products, Software or Services in accordance with Section 11, (c) Purchaser’s violation of these Conditions of Sale or the master agreement, (d) any information that Purchaser submits, transmits, or makes available to BIM Electric, including but not limited to as part of the Feedback, or (e) Purchaser’s violation of any law, regulation, or third party rights. Purchaser shall pay any and all costs, damages, and expenses, including, without limitation, reasonable attorneys’ fees and costs awarded against or otherwise incurred by BIM Electric in connection with or arising from any such claim, lawsuit, action, demand, or other proceeding. BIM Electric, at its expense, may assume the exclusive defense and control of any matter subject to indemnification by Purchaser, in which event Purchaser agrees to cooperate with BIM Electric in asserting any available defenses.
InsuranceBIM Electric shall maintain reasonable insurance coverage (e.g., commercial general liability, worker’s compensation, automobile) in such amounts as BIM Electric deems appropriate in accordance with industry practice. Certificate of insurance evidencing this may be provided on request.
Import and ExportThe Products and Services provided by BIM Electric under these Conditions of Sale contain or may contain components and/or technologies from the United States of America (“US”), the European Union (“EU”) and/or other nations. Purchaser acknowledges and agrees that the Products, assignment and/or usage of the Products, Software, Services, information, other deliverables and/or the embedded technologies (hereinafter referred to as “Deliverables”) under these Conditions of Sale shall fully comply with related applicable US, EU and other national and international export control laws and/or regulations.Unless applicable export license/s has been obtained from the relevant authority and BIM Electric has approved, the Deliverables shall not (i) be exported and/or re-exported to any destination and party (may include but not limited to an individual, group and/or legal entity) restricted by the applicable export control laws and/or regulations; or (ii) be used for those purposes and fields restricted by the applicable export control laws and/or regulations. Purchaser also agrees that the Deliverables will not be used either directly or indirectly in any rocket systems or unmanned air vehicles; nor be used in any nuclear weapons delivery systems; and will not be used in any design, development, production or use for any weapons which may include but not limited to chemical, biological or nuclear weapons.If any necessary or advisable licenses, authorizations or approvals are not obtained, whether arising from inaction by any relevant government authority or otherwise, or if any such licenses, authorizations or approvals are denied or revoked, or if the applicable export control laws and/or regulations would prohibit BIM Electric from fulfilling any order, or would in BIM Electric’s judgment otherwise expose BIM Electric to a risk of liability under the applicable export control laws and/or regulations if it fulfilled the order, BIM Electric shall be excused from all obligations under such order and/or these Conditions of Sale.
Health and Safety ComplianceBIM Electric employees shall not perform Services that, in their sole opinion, are not free of reasonably foreseeable harm. This includes working on any equipment, whether provided by BIM Electric, Purchaser or otherwise, that in such BIM Electric employees’ sole opinion has not been placed in an electrically safe working condition. Purchaser warrants that site and working conditions shall meet or exceed those specified by applicable Occupational Health and Safety Act and Regulations. Purchaser shall inform BIM Electric of: (a) Known hazards, or reasonably foreseeable hazards, that are related to BIM Electric’s scope of Services and the site where the Services will be performed; and (b) Information about the worksite necessary to identify hazards and assess risk for the protection of the health and safety of BIM Electric personnel. This information might include, but is not limited to: (i) Providing an accurate up-to-date single line diagram of the electrical distribution system; (ii) Providing relevant Workplace Hazardous Materials Information System (WHMIS) information such as Material Safety Data Sheets (MSDS) and floor plans indicating areas where hazardous materials are located and emergency exits for service rooms and other areas of operation; and (iii) Other site specific information relative to the Purchaser’s operation, process and safety systems. Any hazardous materials requiring remediation in BIM Electric’s sole opinion will be separately chargeable to Purchaser and will be a condition precedent to BIM Electric’s performance of such Services.
Witness of Tests & Factory InspectionsNormal production schedules do not provide the opportunity for Purchaser to witness routine factory tests on Products or make factory inspections. Witnessing of tests or factory inspections by the Purchaser may result in delays of production for which BIM Electric will not be responsible and which may result in additional charges and delayed scheduling to Purchaser. Witness testing and factory inspections must be requested at time of quotation, are subject to additional costs and must be confirmed at Purchase Order entry. Standard BIM Electric factory testing and inspection will apply. BIM Electric will notify Purchaser fourteen (14) calendar days prior to scheduled witness testing or inspection. In the event Purchaser is unable to attend, the Parties may mutually agree on a rescheduled date. However, BIM Electric, at its sole option, may consider the witness tests or inspection waived, and ship and invoice the Products and the witness testing charges. Purchaser will be responsible for paying for all scheduled witness testing, whether or not Purchaser attends.
Patterns and ToolsNotice will be given if special patterns or tools are required to complete any Purchase Order. Charges for such patterns or tools do not convey title thereto or the right to remove them from BIM Electric’s plant. If patterns or tools are not used for a period of two years, BIM Electric shall have the right to scrap them without notice.
Nuclear ApplicationsUnless otherwise agreed in writing by a duly authorized representative of BIM Electric, Products sold hereunder are not intended for use in or in connection with any nuclear facility or activity. Purchaser hereby represents and warrants that such Products shall not be used in or in connection with any nuclear facility or activity. If so used, BIM Electric disclaims all liability for any damage, injury or contamination; and Purchaser agrees and indemnifies BIM Electric against any such liability, whether arising as a result of breach of contract, warranty or tort (including negligence) or otherwise.
Nature of RelationshipPurchaser agrees that BIM Electric is an independent contractor and nothing in these Conditions of Sales creates between BIM Electric and Purchaser a relationship of partners, joint venturers, or agents of each other, and no Party may so represent itself any of these manners.
TerminationAny Purchase Order may be terminated by the Purchaser only upon 30 days’ notice to BIM Electric and upon payment of reasonable and proper termination charges based on the price of the terminated Purchase Order and reimbursement of all costs and expenses associated with the order caused by such termination and shall include a reasonable profit. Special or custom ordered Products is not cancelable after final acceptance OR approval OF drawings for the commencement of manufacturing.
CancellationBIM Electric shall have the right to cancel any Purchase Order at any time by written notice for any material breach of these Conditions of Sale by the Purchaser, including material delays by Purchaser or its authorized representatives in releasing Products for manufacture or approval drawings and excessive changes to specifications or drawings.
AmendmentsNo amendment, supplement, modification, waiver or termination of the Purchase Order or these Conditions of Sale is binding unless executed in writing by both Parties.
Antibribery and Corruption
1. Purchaser acknowledges that BIM Electric is committed to eliminating all risk of bribery and corruption, influence peddling, money laundering and tax evasion or the facilitation thereof in its business activities. Purchaser must immediately notify BIM Electric of any suspected, or known, breaches of Anti-Corruption Law. Purchaser may raise this alert through their point of contact or through the Green Line: https://secure.ethicspoint.eu/domain/media/en/gui/104677/index.html.
2. None of Purchaser’s employees, beneficial owners, shareholders, or any other person who is involved in or will benefit from the performance of the Contract or has an interest in Purchaser:
  1. is a civil servant, public or governmental official;
  2. is an official or employee of BIM Electric or one of its affiliates; or
  3. has been convicted of, or otherwise been subjected to any administrative sanction or penalty for, any offence involving fraud, bribery, corruption, influence peddling, money laundering, or any other criminal offence involving dishonesty as an element. Buyer will immediately notify BIM Electric if any such individuals are the subject of any investigation into any such offenses.
3. 28.3 Purchaser undertakes and covenants to BIM Electric that it shall not, alone or in conjunction with any other person, directly or indirectly, offer, pay, give, promise to pay or give, or authorize the payment or giving of any money, gift, undue advantage, or anything of value to any employee, official or authorized representatives of BIM Electric.
Applicable LawsAll matters arising out of or relating to the execution, construction, interpretation or breach thereof, are to be governed by the laws of the state of Delaware, USA without regard to the conflict of law provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Conditions of Sale.

BIM-ELECTRICAL CORP. SUPPORT POLICY

This Software Support Policy describes the processes and the limits according which BIM-Electrical Corp. provides support and maintenance services of the Software.

1.0 DEFINITIONS

“Agreement” means the contract entered into by Customer and BIM-Electrical Corp., to which this Support Policy is appended.

“Commercially Released Updates” (also referred to as “Maintenance Releases”): means commercially released code corrections, patches, and updates of the Software as designated by a change in the number to the right of the second decimal in the version number. For example, 2.1.1 is a Maintenance Release of 2.1.0.

“Commercially Released Upgrades”: means collectively “Commercially Released Major Upgrades” and “Commercially Released Minor Upgrades”.

“Commercially Released Major Upgrades” (also referred to as “Major Releases”): means commercially released major new releases, modifications or enhancements to the Software as designated by a change in the number to the left of the first decimal in the version number. Major Releases are normally identified by the number prior to the first decimal point. For example, 3.0 is a Major Release of 2.1 or 2.1.1.

“Commercially Released Minor Upgrades” (also referred to as “Minor Releases”): means commercially released code updates of minor importance (no change to the features) of the Software, as are normally identified by the number immediately following the first decimal point. For example, 2.1 is a Minor Release of 2.0.

“Customer Contact(s)”: qualified named person(s) within Customer’s organization acting as authorized user of the Software.

“Customer Systems”: Customer’s own computer networks or infrastructures such as but not limited to those using operating technology (“OT”) or internet of things technology (“IoT”), platforms, information technology systems, tangible or virtual machines, software, application programs and data, whether or not related to its production environment, on which Customer runs the Software.

“Cyber Threat”: any circumstance or event with the potential to adversely impact, compromise, damage, or disrupt Customer Systems or that may result in any unauthorized access, acquisition, loss, misuse, destruction, disclosure, and/or modification of Customer Systems, including any data, including through malware, hacking, or similar attacks.

“Defect”: any error, bug or dysfunction in the Software, or its non-conformity to its functionalities defined in its Documentation.

“Incident”: means each individual Defect of the Software reported to BIM-Electrical Corp.’s technical support by a Customer Contact.

“Support & Maintenance Term”: For any subscription to the Software, BIM-Electrical Corp. shall provide support and maintenance of the Software during the validity period of such subscription unless the applicable Agreement between BIM-Electrical Corp. and Customer defines any different period for the Support & Maintenance Term of the Software.

2.1 Scope of support and maintenance services

What Software support & maintenance services include

Subject to due payment by Customer of the amounts invoiced for the support and maintenance of the Software in accordance with the Agreement, BIM-Electrical Corp. shall provide Customer with the following services:

Email and phone-based submissions of Incidents submitted by the Customer Contact(s) on the Commercially Released Updates and the Commercially Released Upgrades of the Software;
Preventive and corrective maintenance that consists in giving to Customer the access to Commercially Released Updates and Commercially Released Major Upgrades of the Software (if any) that are released by BIM-Electrical Corp. during the relevant Support & Maintenance Term and made generally available in the given country to all other BIM-Electrical Corp. customers which are entitled to receive same support and maintenance services for the Software;
Giving access to Customer to Minor Releases of the Software.

BIM-Electrical Corp. will provide support and maintenance services only for the Software modules as specified in the Offer and subscribed to by Customer as part of the Software under the applicable Agreement.

What Software support & maintenance services exclude

The following are excluded from BIM-Electrical Corp.’s support and maintenance services of the Software:

Software that is used on or in conjunction with hardware or software other than as specified in the applicable Documentation.
Software that is altered or modified unless the modification is made by BIM-Electrical Corp..
Defects in the Software due to accident, hardware malfunction, abuse or improper use.
Any version of the Software for which support and maintenance services have been discontinued by BIM-Electrical Corp..
Training, customization, integration and any issues arising from non-standard usage of the Software where non-standard usage shall be any usage not compliant with the applicable Documentation.
Any on-site services or remote access services unless BIM-Electrical Corp. requests Customer to proceed through remote access to assist BIM-Electrical Corp. in understanding or solving an Incident.
Assistance in developing user-specific customizations of the Software.
Customer Systems.
Assistance with installation or configuration of hardware, including computers, hard drives, networks or printers.
Assistance with non-BIM-Electrical Corp. products, services or technologies, including implementation, administration or use of third-party enabling technologies such as databases, computer networks or communications systems.
Other professional services such as but not limited to,
on-site support, training, Customer’s own support to any third-parties, implementation or any other consulting services which may be separately purchased from BIM-Electrical Corp. as add on services under a separate professional services agreement agreed to between Customer and BIM-Electrical Corp..
any specific support services such as commonly called “priority support” or “custom support plan” which may be separately purchased from BIM-Electrical Corp. as add on services under a separate professional services agreement agreed to between Customer and BIM-Electrical Corp..

2.2 Incidents submission and resolution

BIM-Electrical Corp. delivers professional customer service to customers and partners through its regional Customer Care Centers.

The Customer Care Center will manage all customers’ requests for technical support received directly through all channels (email, chat, web, phone) agreed upon by BIM-Electrical Corp. The service is to provide first level of technical support in pre-sales (product selection, application information) and post-sales (product installation, technical characteristics, technical complaints) to BIM-Electrical Corp. customers and partners.

Support Contacts

Support and maintenance services are provided jointly by BIM-Electrical Corp. and Autodesk at the following contact points:

[phone number(s) (include for each region)]

[email]

[web portal]

The standard business hours of BIM-Electrical Corp. support services are aligned to standard working hours of their respective country of location which are Monday through Friday from 09:00 AM – 05:00 PM US EST/EDT. Public holidays are applicable and shall not be considered as business days.

Levels of support

“Primary Support” (also known as Level 1 support): basic help desk resolution and service desk delivery. Level 1 provides support for basic customer issues such as solving usage problems and fulfilling service desk requests that need IT involvement. If no solution is available, level 1 support team escalate the Incident to Level 2 support.

“Advanced Support” (also known as Level 2 support): in-depth technical support. Level 2 provides solutions for problems that cannot be handled by Level 1. If no solution is available, Level 2 support escalates the Incident to Level 3.

“Expert Support” (also known as Level 3 support): expert product and service support. Level 3 has access to the highest technical resources available at BIM-Electrical Corp. for problem resolution or new feature creation. Level 3 can attempt to duplicate problems and define root causes, using product designs, code or specifications.

Submitting Incidents

Based on the severity of the Incident, BIM-Electrical Corp. prioritizes customers’ support needs and assure proper escalation from Primary Support to the Advanced Support when necessary (e.g. troubleshooting, technical complaints, in-depth expertise, warranty product replacement, etc.) or to its Services Team to provide on-site support as required.

This process is made through ticket cases created in order to track the request, follow-up the resolution actions, provide the answer to customers and keeps records of interactions with customers and technical investigation. BIM-Electrical Corp. endeavors to answer and if possible, solve customers’ requests at Level 1 support. When the Incident requires more complex support, the Customer Care Centers can escalate to a more advanced support level.

Severity Levels

BIM-Electrical Corp. will prioritize the reported Incidents according to the Severity Level criteria described herein below. Each Incident submitted by the Customer to the relevant local BIM-Electrical Corp.

Severity Level	Description
Severity 1 (“Critical Severity”)	An Incident that involves total failure of the Software to operate, or inability to access or Install the Software or to use key features, resulting in unrecoverable key design data loss or complete interruption of a mission critical design project, for which no Workaround exists.
Severity 2 (“Major Severity”)	Defects in the Software that have a consequence in terms of productivity or operation in use of the Software, but they do not lead to provide erroneous or incomplete information or instruction to the user. Licensee’s use of the software is continuing; however, there is a serious impact on the Licensee’s productivity. Note that an Incident which would otherwise qualify as a Severity 1 Incident for which a workaround exists would be a Severity 2 Incident.
Severity 3 (“Standard Severity”)	Minor Defects in the Software which has a limited or minor adverse effect on Software operation or involves inability to access the Software or to use particular features, in a manner that does not substantially reduce productivity. A workaround may be available. Severity 3 Incidents also include general usage questions regarding Software and requests for clarification of the meaning of Documentation.

Response Targets

For Customers receiving Standard Support: BIM-Electrical Corp. shall use its reasonable endeavors to provide an initial response to a request for support within two (2) business days.

For Customers receiving Premium/Enterprise Support: BIM-Electrical Corp. shall use its reasonable endeavors to provide an initial response to a request for support within the following timeframes:

Incident Severity Level	Response Target	Status Reporting Target	Resolution Target
Severity 1 – Critical	Within 1 business hour from receipt of support request	Once per hour during business hours following response until Severity 1 Incident is resolved or mitigated	Provide either a mitigation or resolution within 24 business hours following response
Severity 2 – Urgent	Within 2 business hours from receipt of support request	Once per day during business hours following response until Severity 2 Incident is resolved or mitigated	Provide either a Mitigation or Resolution within 5 days during Local Business Hours following Response Provide either a mitigation or resolution within 5 business days following response
Severity 3 – Standard	Within 8 business hours from receipt of support request	Once per week during business hours following response until Severity 3 Incident is resolved or mitigated	Provide either a Mitigation or Resolution within 30 days during Local Business Hours following Response

Resolution or Closure of Incidents

BIM-Electrical Corp. shall use its reasonable endeavors to resolve the submitted Incidents to the extent technically possible and as quickly as feasible for BIM-Electrical Corp..

Incidents shall be resolved or closed in the following manner:

For solvable Incidents, and depending on its nature, the resolution may take the form of an explanation, a recommendation, usage instructions, workaround instructions, or requiring Customer to upgrade to an available software fix.
In the event that custom or unsupported plug-ins or modules are used, BIM-Electrical Corp. may ask, in the course of attempting to resolve the Incident, that Customer remove any unsupported plug-ins or modules. If the Defect disappears upon removal of an unsupported plug-in or module, then BIM-Electrical Corp. may consider the Incident to be resolved.
For Defects out of scope of Support and Maintenance Services, BIM-Electrical Corp. may close the Incident by identifying the Incident as outside the scope of the Support and Maintenance Services or arising from a version, platform, or usage case which is excluded from this Support Policy.
Dropped Incidents, BIM-Electrical Corp. may close the Incident if the Customer Contact has not responded to at least two (2) attempts made by BIM-Electrical Corp. to collect additional information required to solve the Incident.

2.3 Disclaimers

BIM-Electrical Corp. shall not bear any obligation to provide support and/or maintenance for Defects that cannot be reproduced, nor for Defects in the Software caused by:

any third-party items, including any third-party commercial software, firmware, hardware or for information or memory data contained in or stored on third party products or services;
for integrations or linkages or technical interfaces of the Software with third party systems or software;
changes to Customer’s internal security policies;
changes to browser, operating system or Customer Systems by Customer or third-party providers not under BIM-Electrical Corp.’s control;
any unauthorized use or any misuse of the Software;
use of the Software not in accordance with the Documentation or other instructions to use provided to Customer by BIM-Electrical Corp. or in violation of the Terms of Use identified in the Agreement or any use other than for the purpose for which the Software is designed as per the Offer;
actions, omissions (such as but not limited to Customer’s failure to provide information) or errors due to Customer, Customer’s affiliates or Customer’s contractors/service providers or their respective Customer Systems, networks, connections, infrastructure, equipment or hardware;
use of the Software on unsupported platform, software, equipment, hardware or devices;
any modification or alteration to the Software, to the extent the Defect is caused by such modification or alteration; or
Customer’s non-compliance with one or more of its obligations defined in this Support Policyor any operation or maintenance instructions provided by BIM-Electrical Corp. in relation to the Software, such as but not limited the continued use of the Software after its Commercially Released Update is made available to Customer by BIM-Electrical Corp..

BIM-Electrical Corp. cannot warrant that the Software will be free of vulnerabilities or Cyber Threats or protected against all viruses or other contamination factors that may threaten the security or integrity of the Software or Customer System. BIM-Electrical Corp. shall not bear any obligation to provide support and/or maintenance for Defects, nor any liability resulting from limitations or delays in the Software due to telecommunication networks, the internet or Cyber Threats.