Sefaira Terms of Service (Archived)

Effective as of September 20, 2011

This agreement sets out the terms of service (hereinafter the “TOS”) on which you can access the Service. The TOS is between

All Sefaira Users and Customers
Anyone who uses or receives Sefaira’s Software, Services and Support (unless expressly agreed otherwise in writing) whether accessed via the Website or delivered by Sefaira to You in another form, including such Customers as specified in an associated Service Level Agreement and / or Statement of Work. (“the Customer” or “You” throughout the remainder of this document).

and

For Customers and Users in Europe, the Middle East or Africa
Sefaira UK Limited
16 High Holborn
London WC1C 6BX
United Kingdom
A company incorporated in England and Wales with company number 7001997
(“Sefaira” throughout the remainder of this document)
For Customers and Users in the United States, Canada or elsewhere in the World outside Europe, the Middle East or Africa
Sefaira Inc.,
419 Lafayette Street, 2nd Floor
New York, NY 10003
United States
(“Sefaira” throughout the remainder of this document)

For the purpose of Sefaira’s commercial relationship with You, the TOS commences on the date You first register on the Website, unless another date is specified in a separate Service Level Agreement (“Commencement Date” throughout the remainder of this document).

You must read and accept all the terms and conditions set out below before you are entitled to use the Service. By using the Service, or by signing a Statement of Work or Service Level agreement that references the TOS, you agree to become a customer (referred to as the Customer) under the TOS and consent to be bound by all of its terms. If You are entering into this TOS on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to the TOS, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with the TOS, You must not accept these TOS and may not use the Service or the Website.

Note in particular Section 6 below. This provides that the Charges for the Services will be automatically deducted from your credit card or other payment method (or – if you belong to a group of users – then the charges will be paid for by the Super-User as defined in Sections 6.6 ) in accordance with the dates and frequency set out in the relevant Charges Plan agreed with you or with the Super-User paying the charges on your behalf. If you do not wish to continue using the Service, you should cancel your use in accordance with Section 10 below.

Any capitalised terms used below are defined at the end of this agreement. References to the TOS shall include the privacy policy for the Website at http://sefaira.com/privacy, the terms of which are incorporated into the TOS.

Licence, Software, Support, Consultancy, Project and API Services

The Sefaira Service (hereinafter “Service”) comprises Software Services (hereinafter “Software”), Support Services (hereinafter “Support”), Training Services (hereinafter “Training”), Consultancy Services (hereinafter “Consultancy”), Project Services (hereinafter “Project”), API Services (hereinafter “API”) and all software, data, text, images, sounds, video, and content made available through the Site or services, or developed via the API (hereinafter the “Content”). These analytical tools and services assist architects, engineers, contractors, building owners, building operators and others in developing more efficient designs and plans for their new building or retrofit projects. The elements of the Service can be consumed either separately or in aggregate, to provide analysis and decision support for Customers for their planning, designing, building, retrofitting or related activities.

Subject to the terms and conditions of the TOS, the Customer accepts and Sefaira grants it a non-exclusive, non-transferable limited licence to use the Service strictly for the duration and in accordance with the terms and conditions of the TOS and solely for the Customer’s internal business operations, other than where another license form has been agreed in an SLA.

Software Services include (a) the Website and all the system, tools and services provided through the Website, and (b) any downloadable software installable onto your machine.

Support Services includes support on how to use the Software, and is provided via telephone and email in addition to the on-line help facility accessible via support.sefaira.com.

Training Services include training services delivered at either a Customer location, a Sefaira’s location, remotely or a third party location, and which purpose it is to train the Customer’s users on how to use Sefaira’s software.

Consultancy Services includes analysis or advice provided by Sefaira’s analysts. It can be requested via the Software, email or telephone, and be delivered to You electronically, in written form or verbally.

Project Services include software and tools developed to specific client requirements, for example in cases where these differ from the standard Software.

API Services include machine-to-machine access to Sefaira’s analytics engine and tools via an application programming interface, as opposed to via a user interface.

Software, Support, Training, Consultancy, Project, API and Content can be consumed separately or in aggregate accordingly to the Service Level Agreement (hereinafter “SLA”) agreed between the Customer and Sefaira. A level of Consultancy, Training, Support and / or Software may be included in the SLA. Sefaira shall not be obligated to provide any of these or any other services, where this has not been expressly agreed in the SLA. If you request Services (for example Support, Training or Consultancy) beyond the amount agreed in the SLA, such services shall be charged at the rate (typically hourly, daily or fixed) agreed between You and Sefaira.

Any new feature added to or augmenting the Service is subject to this TOS.

The Sefaira Service is highly advantageous in providing support and assistance to architects and engineers and other professionals in the construction and real estate industries. However, Sefaira does not provide professional or licensed architect, engineering, or construction services, which are the responsibility of the Customer and/or Customer’s licensed professionals. The Customer agrees that Sefaira shall not be the engineer or architect of record on any project, and that the Customer always must have its plans signed off by appropriate structural, architectural, mechanical or other engineers or architects providing independent advice on all design and / or construction-related matters.

Non-Exclusivity

The provision of access to the Service pursuant to the TOS shall be on a non-exclusive basis and nothing in the TOS shall prevent Sefaira from providing access to the Service to third parties.

Nothing in the TOS shall prevent Sefaira from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the TOS.

Customer Data

The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Notwithstanding the foregoing, the Customer grants Sefaira a non-exclusive, royalty-free licence to use the Customer Data for the purposes of Sefaira:

providing the Service;

meeting its obligations under the TOS; and

aggregating the Customer Data with other data so as to improve the model, metrics and engine of Sefaira’s software products.

Sefaira shall not disclose such Customer Data to any third parties (other than in aggregated or anonymised form).

Notwithstanding the foregoing, Sefaira shall not be liable in any way for any loss of Customer Data which arises out of or in connection with the Customer’s use of the Service.

Customer’s Obligations

The Customer shall:

provide Sefaira with all such information as may be reasonably required by Sefaira in order to allow Sefaira to meet its obligations under the TOS;

provide your legal full name, a valid email address, and any other information requested in order to complete the signup process;

be a human. Accounts registered by “bots” or other automated methods are not permitted;

comply with all applicable laws and regulations with respect to its activities under the TOS;

ensure that its network and systems comply with the relevant specifications provided by Sefaira from time to time; and

be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Website and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

Specifically for Services other than Consultancy, the Customer shall not:

attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service (or any source code relating thereto) in any form or media or by any means;

attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service (or any source code relating thereto); or

remove, obscure, or alter any proprietary rights notices affixed to or contained within the Services.

The Customer shall not:

access all or any part of the Service in order to

build a product or service which competes with the Service including, without limitation, the Software; or

monitor the availability of the Service or its performance or functionality;

share any individual user log-in credentials with anyone else, as these are strictly personal and grants access to the named individual only

make the Service available to a third party in any way;

create Internet links to the Service or frame or mirror the Service or any content within it; and

display or reference any part of the Service, Software or any Sefaira name, trademark or logo on any Website, Facebook or Social or Business Network presence maintained by Customer or any third party or on any advertisements, brochures, or literature utilized by Customer or any third party, unless such reference has been consented to by Sefaira in writing.

The Customer shall use its best endeavours to prevent any unauthorised access to, or use of, the Service and shall notify Sefaira immediately on becoming aware of any such unauthorised access or use.

Intellectual Property Rights

The Customer acknowledges and agrees that Sefaira and/or its licensors own all Intellectual Property Rights in the Services (any derivative works or any improvement or modifications thereof), together with any associated documentation and all Intellectual Property Rights created pursuant to, during or in connection with any Services provided by Sefaira to the Customer (the “Sefaira IPR”). This also includes the Content as defined in Section 1.1. Except as expressly stated at Section 1, the TOS does not grant the Customer any rights to, or in, any of the Sefaira IPR or any other rights or licences in respect of the Software, the Website or the Service or such associated documentation. The Sefaira Software, Website and Service are protected by United States, United Kingdom and international intellectual property laws, including United States patents pending for portions thereof.

Without limitation to Section 5.1, should the Customer obtain any right, title or interest in or to the Sefaira IPR, it hereby assigns such right, title or interest to Sefaira with full title guarantee by way of a present assignment of future rights and agrees herein to execute any documents proffered by Sefaira as required to evidence the same.

The LEED® certification program is an internationally accepted benchmark for the design, construction, and operation of green buildings in the United States and elsewhere in the world. LEED® is a registered trademark of U.S. Green Building Council (USGBC), used by the Green Building Certification Institute (GBCI) under license from USGBC. Sefaira is not affiliated with USGBC or GBCI. Sefaria Concept is not endorsed by USGBC or GBCI.

Sefaira Concept allows users subscribing to certain modules of the Software to forecast an estimated LEED rating of their design concepts. This forecast is an analysis performed by the Software based on an early stage concept design. This forecast does not replace a LEED rating assessment performed by GBCI or guarantee that LEED prerequisites, credits or certification will be conferred at a particular level or at all.

At the request of Customer, and upon mutually agreed Charges, Sefaira may develop customized or enhanced design strategies, features and functionalities of the Services, whether for a particular project or of general application (“Customized Features”). Sefaira shall obtain and retain all Intellectual Property Rights to such Customized Features which shall be governed by all terms and conditions of this Agreement, and such Customized Features shall not be considered “works for hire” for the Customer.

Charges, Expenses, Payment and Refunds

The Service is generally charged on a subscription basis at the start of Your elected subscription term (generally monthly, quarterly or annually), except for certain Project, Training or Consultancy Services which are charged on a one-off basis – typically at the start of the delivery of that project.

The Customer shall pay the Charges in accordance with the relevant charges plan it has agreed (the “Charges Plan”). This is set out either in an SLA, either agreed in writing or agreed to by the Super-User in the administration menu accessible via the Software.

If your use of Support, Training and Consultancy exceeds the amount agreed in your SLA, the amounts accrued are billed at the start of the next elected subscription term to coincide with the subscription term for the software. Such Services will be billed using the same billing details (e.g. credit card) used for the billing of the Software.

If delivery of Consultancy, Project or Training Services to the customer attracts expenses (for example expenses to travel to Customer location for delivery of the services), such reasonable expenses shall be billed to the customer at cost.

The Charges shall be deducted from the credit card or payment method the Customer uses to sign up for the Service on the date and frequency set out in the relevant section of the Charges Plan. The Charges shall be payable in advance and are non-refundable. There will be no refunds or credits for partial periods of service or refunds for periods of time where the Customer does not use the Services. In the event that Sefaira is not able to recover the Charges from the Customer’s credit card or payment method, the Customer shall remain responsible to pay Sefaira its Charges directly within five (5) days notification from Sefaira, and if Customer fails to do so, Sefaira shall be entitled to terminate the TOS. Charges not paid within 30 days attract a 2% monthly interest until paid.

The Charges are exclusive of Sales Tax / Use Tax / Value Added Tax (as applicable) and all other taxes, levies or duties, which shall be added to the Charges to the extent applicable.

For users who form part of a group (“Group Customers”), and where one of this group has paid on behalf of some or all of the users in the group (the “Super-User”), the Super-User shall be invoiced and be responsible for payment of the Charges on behalf of the Customer employing or paying for the group of users (the “User Group”). All other terms of the TOS shall apply to all such Group Customers regardless

For Group Customers, the Super User will be responsible for compliance with this Agreement by all Users of the Service within the User Group of that Super-User, for monitoring that all Users within their User Group are authorized to be part of that User Group, and for discontinuing Users who are unauthorized or have left the employ or retention of the Super-User. From time to time, Sefaira may request that Super Users confirm the authorization of all Users in their User Group, and Super Users shall promptly comply with such request. Users within a User Group shall also be responsible for their own compliance with this Agreement and shall discontinue their use of the Service when they leave the employ, retention by or affiliation with the Super-User. Notwithstanding any other provision of this Agreement, Sefaira shall be entitled to immediately discontinue use of the Service by any User who is not authorized to be part of a User Group or who has otherwise improperly accessed the Service.

Trial & Evaluation, Sefaira Labs Features and Beta Access

Trial access: From time to time and at Sefaira’s discretion, a free trial or evaluation period may be offered for the Service, beginning on the day of the first user sign-up or the commencement data as specified in the SLA, and ending in the date specified in Your SLA (the “Trial Period”). Users with access to the Service for this period are hereinafter defined as “Trial Users”. The terms of the TOS shall apply fully to you throughout the Trial Period as though you were a paying customer, save as expressly provided herein. If You do not provide Your payment or credit card details to Sefaira within the free Trial Period, Your account will be suspended at the end of the Trial Period and can only be reactivated by submitting Your payment or credit card information. Once You have provided credit card or other payment details, You will be promptly billed and Your Trial Period will terminate.

During the Trial Period, Support via email or the Sefaira support portal at support.sefaira.com is provided free of charge. Other than this Support, Services do not come with a free Trial Period, and they are chargeable during the Trial Period according to the rates set out in your SLA. If You have not agreed to an SLA, Sefaira standard rates will apply.

Beta Periods and Sefaira Lab Features. From time to time, Sefaira may introduce new features and functionalities in the Software and may allow Customer to enable and utilize such features in a beta test mode. This could be discrete features (“Sefaira Labs Features”), and it could extend to a wider part of the system which would be labelled “Beta”. During a Beta Period, or when Sefaira Labs Features are available, the Customer may enable and utilize a Sefaira Labs Features or a wider part of the system (the Beta) free of charges or payments, but subject to all other terms and conditions of this TOS. In consideration for this free access to the Sefaira Labs Features and the Beta, the Customer agrees to provide Sefaira with feedback as requested, subject to clause 8 of this agreement. Customer also acknowledges that it has been informed that Features in beta test mode are not complete, and cannot be relied on for accuracy. After such time as the Beta Period for a particular Feature is completed and Sefaira includes such feature in the Services generally available to its customers, Customer will be required to pay any additional Charges for such features as are generally applicable to Sefaira customers.

Confidentiality

Each party shall keep confidential all Confidential Information received or obtained as a result of negotiating, preparing, executing, performing or implementing the TOS which relates to the other party or any agent or subcontractor acting on its behalf. Neither party shall use such information for any purpose other than to perform its obligations under the TOS.

Customer shall keep confidential all Confidential Information which is technical information relating to the Sefaira Service, including without limitation, the Software, source codes, object codes, program listings, processes, methods, models, algorithms, system architecture and design, service performance, features, functionalities and capabilities, know-how and trade secrets.

In the event that either party (“requesting party”) receives a subpoena, court order, or other legal process or demand requiring disclosure of Confidential Information of the other party (“protected party”), the requesting party shall notify the protected party as soon as practicable, and shall cooperate with the protected party in seeking a protective order or other legal process to eliminate or minimize the required disclosure. If, after such notification and cooperation, the requested party is still compelled to disclose Confidential Information of the protected party, the requesting party may disclose such components of the Confidential Information as it is legally required to disclose , subject to any protective order or other legal process which might have been obtained

In the event that either party (“requesting party”) believes that Confidential Information of the other party (“protected party”) has come into the public domain through no fault of the requesting party and wishes to disclose such specific Confidential Information on the basis that it is in the public domain, the requesting party shall notify the protected party of the facts and circumstances thereof, and may disclose such specific Confidential information upon receiving the written consent of the protected party, which shall not be unreasonably withheld.

Exclusions of Warranties and Liability

The Service is provided “as is” without any warranty of any kind either express or implied including but not limited to the implied warranties of merchantability, satisfactory quality or fitness for a particular purpose or any warranties that the Service will operate uninterrupted, or be complete or error free or that it will meet Customer’s requirements. The Service is provided on the basis that the Customer retains its own professional licensed engineering, architecture, quantity surveyor, cost consultant and construction advice, as the Service is not the provision of, is no substitute for, qualified and licensed professional engineering, architectural, structural, quantity surveyor, cost consultant or construction advice to be obtained by Customer at its own cost and expense.

Subject to Sections 9.1, 9.3, 9.4 and 9.8 (and Section 9.9 for Trial Users, Beta Users and Sefaira Labs Users), Sefaira’s liability to the Customer, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss suffered by the Customer shall be limited to an amount equal to 125% of the Charges paid or payable in the 12 months prior to the date that such loss arises.

Subject to Sections 9.1 and 9.2, Sefaira’s liability shall be limited to actual documented direct losses of Customer and Sefaira shall have no liability to the Customer for any:

losses of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information;

for any indirect, incidental or consequential loss, costs, damages, charges or expenses however arising

Sefaira shall indemnify and defend the Customer, its officers, directors and employees against any claims from a third party that the Customer’s use of the Software infringes such third party’s intellectual property rights, provided that:

Sefaira is given prompt notice of any such claim;

the Customer provides all reasonable co-operation to Sefaira in the defence and settlement of such claim, at Sefaira’s expense; and

Sefaira is given sole authority to defend or settle the claim.

In the defence or settlement of any claim under Section 9.4, Sefaira may procure the right for the Customer to continue using the Software, replace or modify the Software so that they become non-infringing or, if such remedies are not reasonably available, terminate the TOS immediately on written notice without any additional liability or obligation to pay liquidated damages or other additional costs or sums to the Customer.

The indemnification provided in Section 9.4 shall exclude any claim to the extent that the alleged infringement is based on:

a modification of the Software by anyone other than Sefaira;

the Customer’s use of the Software in a manner contrary to the instructions given to the Customer by Sefaira;

the Customer’s linkage, combination, integration or use of the Software in connection with other software provided by Customer or any third party;

any transfer, sublicense, or provision of the Software by Customer to a third party

the Customer’s use of the Software after notice of the alleged or actual infringement from Sefaira or any appropriate authority.

Sections 9.4 to 9.6 states the Customer’s sole and exclusive rights and remedies, and Sefaira’s entire obligations and liability, for infringement of any third party’s intellectual property rights.

Sefaira shall have no liability to any member of any User Group other than the Super-User. Sefaira’s liability to the User Group, through the Super-User, shall be limited as set out in Section 9.2 as though the User Group were one Customer. Individual Users within a User Group shall not have any rights to enforce this Agreement.

Beta and Trial Period and Sefaira Labs Features

For the duration of the Trial Period and or for any Beta Period, subject to Section 9.4, Sefaira shall not be liable to the Trial Users whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any direct, indirect, incidental, incidental or consequential losses, loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any other direct, incidental, indirect or consequential loss, costs, damages, charges or expenses however arising under the TOS. The parties agree that the provisions of this Section 9.9are reasonable as the Trial Users are being granted the rights set out in the TOS, including access to the Service for use in its business, free of any charge or royalty.

For the duration of a Beta Period – whether for any particular Sefaira Labs Feature or for a wider Beta, subject to Section 9.4, Sefaira shall not be liable to the users of such of any Labs or Beta feature, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any direct, indirect, incidental, incidental or consequential losses, loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any other direct, incidental, indirect or consequential loss, costs, damages, charges or expenses however arising under the TOS. The parties agree that the provisions of this Section 9.9are reasonable as the users of the particular Sefaira Beta or Labs Feature are being granted the rights set out in the TOS with respect to such particular Sefaira Beta or Labs Feature, including access thereto for use in its business, free of any charge or royalty for such particular Sefaira Beta or Labs Feature and the Customer has been informed that Sefaira Beta or Labs Features are in a beta test mode, are not complete, and cannot be relied on for accuracy.

Customer shall indemnify and defend Sefaira and its officers, directors and employees against any claims arising out of (i) any material breach by Customer of this Agreement and (ii) the use of the Services by Customer or its officers, directors, employees, contractors professional consultants or any other party to which Customer had provided information relating to the Services, in connection with any project.

Term and Termination

The TOS shall commence on the Commencement Date specified in the SLA, and shall continue thereafter, by automatic renewal of the subscription term, until it is terminated in accordance its terms (the “Term”).

Sefaira may amend the TOS at any time without prior notice. If the agreement is amended, you will have an option to review the amended terms upon your next log-in. The revised terms of service will become effective upon your acceptance of them. If any change to the agreement is not acceptable to You, your only remedy is to terminate the service per Section 10.5, and to stop accessing and using the Service.

Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the TOS without liability to the other if the other party commits a material breach of any of the terms of the TOS and (if such a breach is remediable) fails to remedy that breach within ten (10) days of that party being notified in writing of the breach.

Sefaira shall be entitled to terminate the TOS at any time and without liability:

on 30 days’ written notice to the Customer, without cause;

if the Customer undergoes an Insolvency Event; or

in accordance with Section 9.5

The Customer shall be entitled to terminate the TOS at any time in writing, by emailing support@sefaira.com, provided that Customer shall remain responsible for Charges for the subscription term then in effect and there will be no refunds, credits or pro-rations for any portion of the subscription term then in effect which is not utilized by Customer. If Charges have been incurred prior to the Customer’s termination of the Services (such as Support and Consultancy exceeding the amount agreed in your SLA), such Charges shall remain due and payable by the Customer and will be billed (and charged against the same credit card or payment details of Customer) promptly after Customer’s termination of the TOS. For users who from part of a User Group, only the Super-User can terminate the agreement on their behalf.

On termination of the TOS for any reason:

all licences granted under the TOS shall terminate at the end of the subscription period paid for (except that if Sefaira has terminated the TOS for material breach by Customer under Section 10.3 or to correct infringement under Section 9.5, Sefaira may direct that such licences shall terminate immediately) and the Customer shall cease to use the Service (and Sefaira shall be entitled to suspend the Customer’s access to the Service) at the end of such period; and

Sefaira shall provide the Customer with reasonable co-operation so as to ensure the transfer of any Customer Data held by Sefaira back to the Customer (provided that Sefaira shall not be required to incur material cost, liability or expenditure in order to do so). If Sefaira does incur material cost, Sefaira shall be permitted to re-charge such cost to the Customer.

Termination of the agreement does not affect Section 4 (Customer Obligations), Section 5 (Intellectual Property Rights), Section 6 (Charges, Expenses, Payment and Refunds), Section 8 (Confidentiality), Section 9 (Exclusions of Warranty and Liability) and Sections 10 through 20, which will survive any termination of the agreement to protect the parties.

Force Majeure

Neither party will be liable to the other party for its inability or failure to perform, or delay in performing, any obligations under the TOS caused by a Force Majeure Event.

The party affected by the Force Majeure Event will notify the other party once its performance of its obligations under the TOS is no longer prevented due to the Force Majeure Event.

Waiver

Any omission to exercise, or delay in exercising, any right or remedy under the TOS shall not constitute a waiver of that, or any other, right or remedy.

The waiver by any party to the TOS of any of its rights or remedies arising under the TOS or by law shall not constitute a continuing waiver of that right or remedy or a waiver of any other right or remedy.

Severability

If any provision of the TOS is held to be invalid or unenforceable by any judicial or other competent authority, all other provisions of the TOS will remain in full force and effect and will not in any way be impaired.

If any provision of the TOS is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question will apply with the minimum modifications necessary to make it valid and enforceable.

Independent Contractors; No Partnership

Sefaira and Customer shall be independent contractors and nothing in the TOS is intended to or shall be construed as establishing or implying any partnership, joint venture or agency of any kind between the parties, and nothing in the TOS shall be deemed to constitute any party as the agent of any other party. No party shall have any authority to act in the name of, or on behalf of, or otherwise to commit or bind any other party in any way whatsoever (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

Entire Agreement

The TOS contains the entire agreement between the parties with respect to its subject matter.

Each of the parties acknowledges and agrees that it has not entered into the TOS in reliance on any statement or representation of any person (whether a party to the TOS or not) other than as expressly incorporated in the TOS.

Each of the parties irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or to rescind the TOS by reason of any misrepresentation (other than a fraudulent misrepresentation) not contained in the TOS.

Assignment

Sefaira may, but the Customer may not (except with the prior written consent of Sefaira):

assign any of its rights under the TOS;

transfer any of its obligations under the TOS;

sublicense, subcontract or delegate any of its obligations under the TOS;

grant a security interest in or over Customer’s rights to the Software; and/or

charge or deal in any other manner with the TOS or any of its rights or obligations.

Any purported assignment, transfer, subcontracting, delegation, charging or dealing in contravention of this Section 16 shall be ineffective.

The TOS is personal to the Customer and is entered into by the Customer for its own benefit and internal use in its own business and not for the benefit of or use by another third person or party.

No Third Party Rights or Benefits

The TOS is solely for the benefit of, and enforceable by, the parties hereto. The TOS does not confer any rights or benefits on, and is not enforceable by, any third person or party. As set forth in Section 9.8 above, for any User Group, only the Super User shall be entitled to enforce this Agreement.

Notices

Any notice to be given under the TOS must be in writing, in English and may be served by hand delivery at, or by pre-paid first class post, recorded delivery or registered post to the address of the receiving party as set out at the beginning of the TOS or by fax to any fax number notified by any party to the other party for the purposes of the TOS.

Subject to Section 18.3, any notice served in accordance with Section 18.1 shall be deemed to have been received:

if delivered by hand, at the time of delivery;

if sent by pre-paid first class post, recorded delivery or registered post, at 9.30 a.m. on the second clear day after the date of posting; or

if sent by fax, at the time of transmission by the sender.

If, under the provisions of Section 18.1, a notice would be deemed to have been received outside normal business hours, being 9.30 am to 5.30 pm local time on any day which is not a Saturday, Sunday or public holiday in the place of receipt (which, in the case of service on any party by fax shall be deemed to be the same place as the address specified for service on that party by post), it shall instead be deemed to have been received at the recommencement of such normal business hours.

A notice given under the TOS shall not be validly served if sent by email.

Governing Law and Jurisdiction; Remedies

The TOS and any dispute or claim arising out of or in connection with it or its subject matter, whether of a contractual or non-contractual nature, shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute arising out of or in connection with the TOS, except that Sefaira may pursue legal and equitable remedies in any jurisdiction to restrain any breach or violation by Customer of .Section 4 (Customer’s Obligations), Section 5 (intellectual Property Rights) and Section 8 (Confidentiality)

Customer acknowledges that any breach or violation by Customer of Section 4 (Customer’s Obligations), Section 5 (intellectual Property Rights) and Section 8 (Confidentiality) would cause irreparable harm to Sefaira, for which money damages would be inadequate, and accordingly, Sefaira shall be entitled to seek equitable and injunctive relief in any court of competent jurisdiction to restrain such violation, without the need to post a bond or other collateral or prove special damages

Sefaira and Customer agree that with respect to any and all claims that one may have against the other arising out of or relating to this Agreement (except for any breach or violation by Customer of Section 4 (Customer’s Obligations), Section 5 (Intellectual Property Rights) and Section 8 (Confidentiality) to which this Section 19(c) shall not apply) or the provision of Services, including claims arising under any applicable law and regulations, the parties shall first seek to resolve any disputes amicably, which shall require a twenty (20) day mandatory negotiation period in which the senior executive officers of Customer and the Sefaira and their professional advisors will meet (including by conference telephone or video call)to attempt to resolve any dispute, and if they cannot, such disputes shall be subject to arbitration as provided in this Section 19(c). Any disputes between Customer and Sefaira, which after the mandatory negotiation period referred to above are still unresolved shall be adjudicated and resolved exclusively through expedited binding arbitration before a single arbitrator of a bona fide, neutral, nationally recognized arbitration service to be selected by Sefaira. For Customers and Users in Europe, the Middle East or Africa, the arbitrator shall be located in London, England. For Customers and Users in the United States, Canada or elsewhere in the World outside Europe, the Middle East or Africa, the arbitrator shall be located in New York, NY, United States. The initiation and conduct of any arbitration hereunder shall be in accordance with the rules of such arbitration service. The administrative filing fees of the arbitration and the arbitrator’s fees shall be split equally between Customer and Sefaira unless the parties agree otherwise. Customer and Sefaira shall each be responsible for paying their own attorneys’ fees and all other costs they incur related to any arbitration proceeding, except to the extent that applicable law provides for the shifting or the recovery of such fees and costs. The arbitrator will not have the right to modify or change any of the terms of this Agreement. The arbitrator shall base the award on applicable law and judicial precedent, shall include in such award the findings of fact and conclusions of law upon which the award is based and shall not grant any remedy or relief that a court could not grant under applicable law. The decision of the arbitrator in any such proceeding will be final and binding and not subject to judicial review, and final judgment may be entered upon such an award in any court of competent jurisdiction, but entry of such judgment will not be required to make such award effective. The arbitration proceedings shall be confidential and neither party shall disclose any information about the existence, conduct or results of the proceedings without the prior written consent of the other party except pursuant to an official written request of a governmental authority.

Miscellaneous

Non-Solicitation of Staff. During the term of this agreement, the Customer shall not recruit, solicit or hire for employment or as an independent contractor, any Sefaira employee, or induce or attempt to induce an Employee to terminate his or her employment with Sefaira.

Interpretation

In the TOS, except where a different interpretation is necessary in the context, the words and expressions set out below shall have the following meanings:

API Sefaira’s Application Programming Interface, only accessible via explicit agreement.
Charges the charges due from the Customer for use of the Service, as detailed in the Charges Plan;
Charges Plan has the meaning given to it in Section 6.2;
Commencement Date the start date of the TOS;
Confidential Information all information which is imparted or obtained (whether in writing, verbally or by other means and whether directly or indirectly) under or in connection with the TOS on, before or after the date that it is entered into or which is of a confidential nature relating to the business or prospective business, current or projected plans or internal affairs of any of the parties, including in particular, but not limited to, the existence, terms and subject matter of the TOS and the negotiations relating to it, all know-how, trade secrets, inventions, products, operations, processes, product information and unpublished information relating to intellectual property rights, and any other commercial, financial or technical information relating to their businesses or prospective businesses
Consultancy Services are advisory services provided by Sefaira in the form of analysis, reports, suggestions and recommendations concerning Your selection of sustainability strategies for your building design projects. Consultancy Services are delivered at your premises or remotely, in person or via electronic means of communication, including the Consultancy Services embedded directly in the Software.
Content has the meaning given to it in Section 1.1
Customer is the legal person or entity defined in the beginning of this document.
Customer Data the data inputted or uploaded by or on behalf of the Customer for the purpose of the Customer using the Software or Service.
Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following: (a) strikes, lock-outs or other industrial action; (b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; (c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; (d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; (e) impossibility of the use of public or private telecommunications networks; and (f) the acts, decrees, legislation, regulations or restrictions of any government.
Group Customers has the meaning give in Section 6.6
Intellectual Property Rights any and all intellectual property rights of any nature anywhere in the world whether registered, registerable or otherwise, including patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals or other documentation, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites (including the Website);
Project Services Services that create or deploy modifications to the Service so that it better suits customer requirements.
Service has the meaning given to it in Section 1.1
Service Level Agreement the addendum to the TOS, detailing which Services are provided to the Customer.
Software has the meaning given to it in Section 1.1
Super-User has the meaning given to it in Section 6.6 ;
Support Services are services that enable You get the most value out of the Service, by providing help, training and other services that improve the way you use the Service. Support Services are delivered at your premises or remotely, in person or via electronic means of communication, including the Support Services embedded directly in the Software.
Term has the meaning given to it in Section 10.1;
TOS (Terms of Service) is this agreement in its entirety, incorporating Service Level Agreements
Trial Period has the meaning given to it in Section 7.1;
Trial User has the meaning given to it in Section 7.1;
User Group has the meaning given to in Section 6.6 ; and
Website www.sefaira.com or any related sub-domain of sefaira.com, including but not limited to apps.sefaira.com.

The section, paragraph and Schedule headings and the table of contents used in the TOS are inserted for ease of reference only and shall not affect construction.

The Schedules to the TOS are incorporated into the TOS. In the event of any inconsistency between the main body of the TOS and the Schedules, the main body shall prevail. References in the TOS and the Schedules to the parties, Schedules and sections are references respectively to the parties and Schedules to and sections of the TOS.

References to persons shall include bodies corporate, unincorporated associations, limited liability companies, trusts, partnerships and governmental entities, in each case whether or not having a separate legal personality.

References to the word “include” or “including” (or any similar term) are not to be construed as implying any limitation and general words introduced by the word “other” (or any similar term) shall not be given a restrictive meaning by reason of the fact that they are preceded or followed by words indicating a particular class of acts, matters or things.

Except where the context specifically requires otherwise, words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing corporations and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole shall be treated as including a reference to any part.

If any condition or covenant contained in the TOS requires a party to it not to do an act or thing it shall be a breach of any such condition or covenant to permit or suffer such act or thing to be done.

I have read the terms above and acknowledge that by using the Service, I agree to be bound by them in my use of the Service.