Terms of Service

This Terms of Service Agreement (the “Terms”) are being entered into between Argyle user (“Customer”) and Argyle, Inc., a corporation with a principal place of business at Argyle (care of Vida) 401 NE 19th Ave., Suite 200, Portland, OR 97232 (“Argyle”) as of the date user accesses the Argyle platform. (“Effective Date”).In consideration of the mutual promises and agreements set forth in these Terms, the parties agree as follows:DEFINITIONS.“Ancillary Services” means implementation, training or other professional services that Argyle may perform as described in an applicable Project Form.“Argyle Platform” means Argyle’s hosted platform that facilitates the overlay of Customer’s BIM (Building Information Model) on the active construction site in augmented reality; provided that such definition excludes the Argyle Applications and any Open Source Software that may be used to provide such platform.“Argyle Applications” means those software applications made available by Argyle for installation on mobile devices and augmented reality headgear. “Authorized Purposes” means, unless otherwise permitted in an applicable Project Form, (a) for non-Beta Licenses, use of the Argyle Platform solely for Customer’s internal purposes in visualizing Customer’s BIM on Customer’s construction site(s) in augmented reality, and not for the provision of services to any third party; and (b) for Beta Licenses, use of the Argyle Platform solely for Customer’s internal testing and evaluation use, and not for the provision of services to any third party. “Authorized Users” means Customer’s employees, consultants, contractors, and/or agents: (a) who are authorized by Customer to access and use the Argyle Platform on Customer’s behalf, and (b) who have been supplied user identifications and passwords for such purpose by Argyle.“Beta License” means a non-production license granted to Customer with respect to a pre-release version of the Argyle Platform and/or Argyle Applications for the period specified in the Project Form, and that is not supported, may contain bugs or errors (but shall not knowingly contain any undisclosed Malicious Code), and may be subject to additional terms that shall be provided by Argyle to Customer.“Customer Data” means all Customer data uploaded or otherwise transmitted by or on behalf of Customer or its Authorized Users, and received, stored and processed by the Argyle Platform.  BIMs uploaded to the Argyle Platform shall be considered Customer Data for purposes of these Terms.  “Customer System” means Customer’s computing devices, servers, augmented reality headgear, mobile devices and other equipment and software used to upload Customer Data to the Argyle Platform and access and utilize such Customer Data for Authorized Purposes.“Documentation” means the printed or electronic user instructions and help files made available by Argyle for use with the Argyle Platform, as may be updated from time to time by Argyle.“Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.“Open Source Software” means open source, public source or freeware software made available under or otherwise subject to any license that (a) is considered an open source software license by the Open Source Initiative or a free software license by the Free Software Foundation, or any license substantially similar to any of the foregoing.“Project Form” means the Argyle ordering documents required for the purchase of Services and use of the Argyle Applications that are executed by the parties from time to time, including any mutually acceptable modifications, supplements and addenda thereto. Project Forms are incorporated herein. “Services” means the Argyle Platform, Support Services and any Ancillary Services.“Subscription Term” means the period, set forth in Customer’s applicable Project Form, for which Customer is permitted to access and use the Argyle Platform and Argyle Applications. “Support Services” means the support and maintenance services provided by Argyle to Argyle Platform subscribers, as further described in Customer’s Project Form (if applicable).PROJECT FORMS; LICENSES; RESTRICTIONS.  Project Forms.  Subject to the terms of this Agreement, Customer may order Services and Argyle Applications by entering into one or more Project Forms. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Argyle regarding any future functionality or featuresAccess and Use License.  Subject to Customer’s compliance with the terms and conditions contained in these Terms, Argyle, during the relevant Subscription Term, hereby grants Customer and, if applicable its Authorized Users, a limited, non-exclusive, non-transferable right to access and use the Argyle Platform in accordance with the Documentation in each case solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity. Customer’s use of the Argyle Platform may be subject to certain limitations – for example, certain functionality of the Argyle Platform may be limited, as further described in the applicable Project Form.   License to Argyle Applications.  Subject to Customer’s compliance with these Terms, Argyle hereby grants to Customer, during the Term, a limited, non-exclusive, non-transferable and non-sublicensable right to install, execute and use one (1) copy of the applicable Argyle Application on applicable mobile devices or augmented reality headgear owned or leased by Customer, solely in object code form and solely for Customer’s Authorized Purposes. Customer acknowledges and agrees that the Argyle Applications are provided under license, and not sold. Customer does not acquire any ownership interest in the Argyle Applications under these Terms, or any other rights thereto other than to use the Argyle Applications in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. Restrictions.  Customer shall not, directly or indirectly, and Customer shall not permit any Authorized User or third party to:  (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Argyle Platform or the Argyle Applications; (b) modify, translate, or create derivative works based on any element of the Argyle Platform, the Argyle Applications or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Argyle Platform or Argyle Applications; (d) except as otherwise expressly permitted herein, use the Argyle Platform or Argyle Applications for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Authorized Users; (e) remove any proprietary notices from the Documentation or Argyle Applications; (f) use the Argyle Platform or Argyle Applications for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Argyle Platform; (h) introduce any Open Source Software into the Argyle Platform or Argyle Applications; or (i) attempt to gain unauthorized access to the Argyle Platform, the Argyle Applications, Argyle’s related systems or networks, or to the content and data uploaded by other users.Reservation of Rights.  Except as expressly granted in these Terms, there are no other licenses granted to Customer or any Authorized User, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Argyle.THIRD PARTY PRODUCTS AND HOSTING.  Third Party Products.  Customer understands that the successful use of the Argyle Platform will require the procurement of hardware and software components not provided by Argyle (“Third-Party Products”), including but not limited to Autodesk Revit, Autodesk Navisworks, augmented reality headsets and/or other mobile devices. All Third-Party Products shown on the Platform are subject to availability and Argyle does not provide any guarantee of any Third-Party Product’s availability or performance. Third Party Hosting.  Argyle may use the services of one or more third parties to deliver all or part of the Argyle Platform.  Argyle will pass through any warranties to the extent that Argyle receives any from its then current third-party service provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.ACCOUNTS AND PASSWORDS.Accounts.  Customer and all Authorized Users will be required to have an account with Argyle before being permitted to access and use the Argyle Platform. To create an account, the Customer must provide Argyle with current, complete and accurate information about all Authorized Users for whom accounts will be created. All the information provided when registering for an account must be accurate, complete and up to date. Argyle reserves the right to terminate any account for which the provided information is untrue, inaccurate, incomplete or not current.Passwords.  Customer and its Authorized Users shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the person to which it was issued. Customer is solely responsible for any and all access and use of the Argyle Platform that occurs using any Authorized User’s account. Customer shall not share, and shall restrict its Authorized Users from sharing, passwords. Customer agrees to immediately notify Argyle of any unauthorized use of any account or login and password issued to Customer and/or its Authorized Users.  Argyle shall have no liability for any loss or damage arising from Customer’s or its Authorized Users failure to comply with the terms set forth in this Section.No Circumvention of Security.  Neither Customer nor any Authorized User may circumvent or otherwise interfere with any user authentication or security of the Argyle Platform. Customer will immediately notify Argyle of any breach, or attempted breach, of security known to Customer.  CUSTOMER OBLIGATIONS.Customer System.  Customer is responsible for (a) obtaining, deploying and maintaining the Customer System; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Argyle Platform via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing.  Except as specifically set forth in these Terms or a separate agreement between Customer and Argyle referencing these Terms, Argyle shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.Acceptable Use.  Customer shall be solely responsible for its actions and the actions of its Authorized Users while using the Argyle Platform and Argyle Applications.  Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Argyle Platform and Argyle Applications, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Argyle Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Argyle Platform or another's computer, augmented reality device, or mobile device; (d) not to use the Argyle Platform or Argyle Applications for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the Argyle Platform or interfere with others’ ability to access or use the Argyle Platform; (f) not to distribute, promote or transmit through the Argyle Platform any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) to comply with all regulations, policies and procedures of networks connected to the Argyle Platform and Argyle’s service providers; and (i) to use the Argyle Platform and Argyle Applications only in accordance with the Documentation.  Customer acknowledges and agrees that Argyle neither endorses any Customer communications or Customer Data, nor does Argyle assume any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby.  Argyle may, but is not required to, remove any violating content posted or stored using the Argyle Platform or transmitted through the Argyle Platform, without notice to Customer.  Notwithstanding the foregoing, Argyle does not guarantee and is not obligated to verify, authenticate, monitor or edit the Customer Data, or any other information or data input into or stored in the Argyle Platform for completeness, integrity, legality, quality, accuracy or otherwise.  Customer shall be responsible and liable for the completeness, integrity, legality, quality and accuracy of Customer Data and other information input into the Argyle Platform.  Customer shall be solely responsible for ensuring compliance with applicable laws and regulations in its use of the Argyle Platform. Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Argyle to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Argyle of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Argyle at the e-mail addresses specified by it for login purposes. In addition, Customer agrees that Argyle may rely and act on all information and instructions provided to Argyle by Authorized Users from such e-mail addresses.Temporary Suspension.  Argyle may temporarily suspend Customer’s or its Authorized Users’ access to the Argyle Platform in the event that either Customer or any of its Authorized Users is engaged in, or Argyle in good faith suspects Customer or any of its Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Argyle will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Argyle’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include its Authorized Users’ accounts. Customer agrees that Argyle shall not be liable to Customer, Authorized Users, or any third party if Argyle exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Argyle’s reasonable satisfaction, Argyle shall reinstate Customer’s and its Authorized Users’ access to and use of the Argyle Platform. Notwithstanding anything in this Section to the contrary, Argyle’s suspension of access to the Argyle Platform is in addition to any other remedies that Argyle may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Argyle may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.AVAILABILITY; SECURITY.Availability.  Subject to the terms and conditions of these Terms, Argyle will use commercially reasonable efforts to make the Argyle Platform available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime, or (b) unavailability caused by circumstances beyond Argyle’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays. Argyle may make changes to the Argyle Platform and/or Argyle Applications at any time and without notice to Customer. Certain enhancements to the Argyle Platform and Argyle Applications made generally available at no cost to all users during the applicable Term will be made available to Customer at no additional charge.  However, the availability of some new enhancements to the Argyle Platform and Argyle Applications may require the payment of additional fees, and Argyle will determine in its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Argyle Platform and Argyle Applications include, any enhancements, updates, upgrades and new modules to the Argyle Platform provided in connection therewith and subsequently provided by Argyle to Customer hereunder.Security; Privacy Policy.  Argyle will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data in a in a manner consistent with what Argyle supplies generally to its other users.  Please review Argyle’s privacy policy and information policy, which is available on the Argyle Website (the “Privacy Policy”) and which further explains how Argyle collects and uses the Customer Data and other information that Argyle collects through users’ use of the Argyle Platform. ANCILLARY SERVICES. Argyle shall use commercially reasonable efforts to perform the Ancillary Services as set forth in applicable Project Forms.  Each such Project Form will include, at a minimum: (a) a description of the Ancillary Services, (b) any work product or other deliverables to be provided to Customer (each a “Deliverable”), (c) the schedule for the provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary Services.  Project Forms that include Ancillary Services may also contain additional terms and conditions that apply to the provision of such Ancillary Services.  Such additional terms are incorporated herein by reference. Argyle and Customer shall cooperate to enable Argyle to perform the Ancillary Services according to the dates of performance and delivery terms set forth in each applicable Order Form.  In addition, Customer shall perform any Customer obligations specified in each Order Form.  In the event the Ancillary Services are not performed in accordance with the terms of the applicable Order Form, Customer shall notify Argyle in writing no later than thirty (30) calendar days after performance of the affected Ancillary Services, Customer’s notice shall specify the basis for non-compliance with the Order Form and if Argyle agrees with the basis for non-compliance, then at Argyle’s sole option, Argyle shall re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the applicable fees for the affected Deliverable or Ancillary Service.  THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ARGYLE’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE ANCILLARY SERVICES.FEES AND PAYMENT.Fees. Customer agrees to pay all applicable fees using one of the payment methods Argyle supports. Except as otherwise specified in these Terms, (a) fees are based on Services and software licenses purchased, regardless of actual usage, and (b) payment obligations are non-cancelable and fees paid are non-refundable.  Subscription fees are based on annual periods that begin on the Subscription Term start date and each anniversary thereof. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.Payment. Argyle will invoice customer for the amounts set forth in applicable Project Forms and payment of such invoices is due upon the date set forth for such payment in the Project Form.  Customer agrees that Argyle may invoice Customer for any unpaid fees, including without limitation any amounts owed by Customer that cannot be processed.  Customer is responsible for providing complete and accurate billing and contact information to Argyle and notifying Argyle of any changes to such information. Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.  Overdue Charges.  If Argyle does not receive fees by the due date, then at Argyle’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Argyle may condition future purchases of Services on payment terms shorter than those specified in Section 7.2 (Payment).Suspension of Service. If any amounts owed by Customer for the Services are more than thirty (30) days overdue, Argyle may, without limiting Argyle’s other rights and remedies, suspend Customer’s and its Authorized Users’ access to the Argyle Platform until such amounts are paid in full; provided that Argyle agrees that it will not exercise its rights under this Section if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.Taxes. The fees applicable to Customer’s and its Authorized Users’ use of the Argyle Platform are exclusive of all sales, use, value added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Argyle’s net income). REPRESENTATIONS AND WARRANTIES; DISCLAIMER.Mutual Representations and Warranties.  Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust. Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, THE ARGYLE PLATFORM, ARGYLE APPLICATIONS, ANCILLARY SERVICES AND SUPPORT SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE AND RECEIPT OF THE ARGYLE PLATFORM, ARGYLE APPLICATIONS, ANCILLARY SERVICES AND SUPPORT SERVICES IS AT ITS OWN RISK.  ARGYLE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  THE EXPRESS WARRANTIES MADE BY ARGYLE IN SECTION 8 ARE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE ARGYLE PLATFORM IS LICENSED AND NOT SOLD. NO WARRANTIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE LICENSE TERM OF ANY BETA LICENSE.ANY WARRANTY FOR THIRD-PARTY PRODUCTS WILL BE THE WARRANTY PROVIDED BY THE MANUFACTURER OF SUCH THIRD-PARTY PRODUCT DIRECTLY TO CUSTOMER.  ARGYLE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE THIRD-PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY, ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  NO AGENT OF ARGYLE IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF ARGYLE AS SET FORTH HEREIN. ARGYLE DOES NOT WARRANT THAT: (A) THE USE OF THE ARGYLE PLATFORM OR ARGYLE APPLICATIONS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES OR ARGYLE APPLICATIONS WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE ARGYLE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES OR ARGYLE APPLICATIONS WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE ARGYLE PLATFORM OR ARGYLE APPLICATIONS WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE ARGYLE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ARGYLE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS OR TRANSACTIONS MADE BY CUSTOMER AND ITS AUTHORIZED USERS IN USING THE SERVICES.  CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) USE OF THE SERVICES IS AT THE SOLE RISK OF CUSTOMER AND ITS AUTHORIZED USERS; (B) ARGYLE SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION IN USE OF THE SERVICES, DELAYS OR ERRORS CAUSED BY CUSTOMER'S USE OF THE SERVICES, OR ANY PART THEREOF; (C) ARGYLE IS NOT THE MANUFACTURER OF ANY THIRD-PARTY PRODUCT; AND (D) ARGYLE SHALL NOT BE RESPONSIBLE FOR (i) MISREPRESENTATIONS OF ANY THIRD-PARTY PRODUCT MANUFACTURER OR (ii) THE FULFILLMENT OF ANY THIRD-PARTY PRODUCT ORDERS PLACED BY CUSTOMER, INCLUDING, WITHOUT LIMITATION, THE CANCELLATION OF ANY SUCH ORDERS AND/OR THE RETURN OR SERVICING OF ANY THIRD-PARTY PRODUCTS. CUSTOMER SHALL HOLD ARGYLE AND ITS DIRECTORS, MEMBERS, SHAREHOLDERS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS AND/OR EXPENSES (INCLUDING REASONABLE LEGAL FEES) ARISING OUT OF CUSTOMER'S USE OF THE SERVICES.INDEMNIFICATION. Argyle Indemnity.  General.  During the Term (other than with respect to a Beta License), Argyle, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Argyle Platform or Argyle Applications infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing such Third-Party Claim.  Argyle’s obligations under this Section are conditioned upon (i) Argyle being promptly notified in writing of any Third-Party Claim under this Section, (ii) Argyle having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (iii) Customer providing all reasonable assistance (at Argyle’s expense and reasonable request) in the defense of such Third-Party Claim.  In no event shall Argyle settle any such Third-Party Claim without Customer’s prior written approval.  Customer may, at its own expense, engage separate counsel to advise Customer regarding a Third-Party Claim and to participate in the defense of the Third-Party Claim, subject to Argyle’s right to control the defense and settlement.Mitigation.  If any claim which Argyle is obligated to defend has occurred, or in Argyle’s determination is likely to occur, Argyle may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Argyle Platform and/or Argyle Applications, (b) substitute a functionality equivalent, non-infringing replacement for the Argyle Platform and/or Argyle Applications, (c) modify the Argyle Platform and/or Argyle Applications to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Argyle Platform and/or Argyle Applications due to such claim and the remaining days in the then-current Subscription Term.Exclusions.  Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the Argyle Platform and/or Argyle Applications in combination with any software, hardware, network or system not supplied by Argyle where the alleged infringement relates to such combination, (iii) any modification or alteration of the Argyle Platform and/or Argyle Applications other than by Argyle, (iv) Customer’s continued use of the Argyle Platform and/or Argyle Applications after Argyle notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law; and/or (vi) the Customer System.Sole Remedy.  THE FOREGOING STATES THE ENTIRE LIABILITY OF ARGYLE WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE ARGYLE PLATFORM, ARGYLE APPLICATIONS OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF ARGYLE WITH RESPECT THERETO. NOT WITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION 9.1, NO INDEMNITIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT WITH RESPECT TO ANY BETA LICENSE.Customer Indemnity.  Customer shall defend Argyle and its affiliates, licensors and their respective officers, directors and employees (“Argyle Indemnified Parties”)  from and against any and all actions, proceedings, claims and demands by a third party (each a “Third-Party Claim”) which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Argyle of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights or privacy rights; (b) Customer’s use or alleged use of the Argyle Platform in violation of applicable law or other than as permitted under these Terms or (c) Customer’s use of any Third-Party Products. Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any Third-Party Claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (z) Argyle providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such Third-Party Claim. In no event shall Customer settle any such Third-Party Claim without Argyle’s prior written approval.  Argyle may, at its own expense, engage separate counsel to advise Argyle regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.CONFIDENTIALITY. Confidential Information.  Each party (the “Receiving Party”) hereby understands and acknowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s or its suppliers’ business or products (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Argyle shall include the Argyle Applications any and all non-public information regarding features, functionality and performance of the Argyle Platform and the Third-Party Products. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.Injunctive Relief.  The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.PROPRIETARY RIGHTS. Argyle Platform and Argyle Argyle Applications.  As between Argyle and Customer, all right, title and interest in the Argyle Platform, the Argyle Applications and any other Argyle materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Argyle Platform or Argyle Applications, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Argyle or Argyle’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Argyle all evaluations, ideas, feedback and suggestions made by Customer to Argyle regarding the Argyle Platform (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.  Customer Data.  As between Argyle and Customer, all right, title and interest in the Customer Data, belongs to and is retained solely by Customer. By posting, displaying, sharing or distributing Customer Data on or through the Argyle Platform, Customer hereby grants to Argyle a limited, sublicenseable non-exclusive, royalty-free, worldwide license to reproduce, display, publicly perform, distribute and otherwise use the Customer Data, and perform all acts with respect to the Customer Data as may be necessary for Argyle to provide the Services to Customer. Argyle may modify, copy, translate or make any derivative works of Customer Data in connection with its provision of the Argyle Platform as required to format such Customer Data for presentation within the Argyle Platform, to continually improve the Argyle Platform and to develop new services and offerings.Aggregated Statistics.  Notwithstanding anything else in these Terms or otherwise, Argyle may monitor Customer’s use of the Services and use Customer Data and other data and information related to such use, in an aggregate and anonymous manner, including to compile statistical and performance information related to Argyle Platform and its users (“Aggregated Statistics”). As between Argyle and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Argyle. Customer acknowledges that Argyle will be compiling Aggregated Statistics based on Customer Data and information input by other customers into the Argyle Platform and Customer agrees that Argyle may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.Argyle Developments.  All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Argyle, whether solely or jointly, including without limitation, in connection with Argyle’s performance of the Ancillary Services hereunder, including (unless otherwise expressly set forth in an applicable Project Form) all Deliverables (“Argyle Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of Argyle.  Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Argyle Developments is not, by operation of law or otherwise, vested in Argyle, Customer hereby assigns and agrees to assign to Argyle all right, title and interest in and to such Argyle Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.Further Assurances.  To the extent any of the rights, title and interest in and to Feedback or Argyle Developments or Intellectual Property Rights therein cannot be assigned by Customer to Argyle, Customer hereby grants to Argyle an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest.  If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Argyle those non-assignable and non-licensable rights, title and interest.  Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Argyle may reasonably request, to perfect ownership of the Feedback and Argyle Developments.  If Customer is unable or unwilling to execute any such document or take any such action, Argyle may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact.  The foregoing appointment is deemed a power coupled with an interest and is irrevocable.  License to Deliverables.  Subject to Customer’s compliance with this Agreement, Argyle hereby grants Customer a limited, non-exclusive, non-transferable license during the applicable Subscription Term(s), to use the Deliverables solely in connection with Customer’s authorized use of the Argyle Service. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by Argyle to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.LIMITATION OF LIABILITY.No Consequential Damages.  NEITHER ARGYLE NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF ARGYLE OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE ARGYLE PLATFORM, ARGYLE APPLICATIONS, ANCILLARY SERVICES, THIRD-PARTY PRODUCTS, SUPPORT SERVICES AND/OR THE RESULTS THEREOF.  ARGYLE WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.Limits on Liability.  NEITHER ARGYLE NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO ARGYLE UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.Essential Purpose.  CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.TERM AND TERMINATION.  Term.  The term of these Terms commences upon the execution of an applicable Project Form and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms or in an applicable separate agreement between Customer and Argyle referencing these TermsTermination for Cause.  A party may terminate these Terms upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing  or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree.  In no event shall any termination relieve Customer of the obligation to pay any fees payable to Argyle for the period prior to the effective date of termination.Effects of Termination.  Upon expiration or termination of these Terms, (a) Customer’s use of and access to the Argyle Platform and Argyle’s performance of all Support Services and Ancillary Services shall cease; (b) Customer and its Authorized Users shall cease all use of and uninstall all copies of the Argyle Applications; and (c) all fees and other amounts owed to Argyle shall be immediately due and payable by Customer. Argyle shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete or retain all Customer Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing. Survival.  This Section and Sections 1, 2.4, 2.5, 5.2, 9.2, 10, 11, 12, 13, 14.3, 15 and 16 shall survive any termination or expiration of these Terms. DISPUTES BETWEEN USERS; INTELLECTUAL PROPERTY INFRINGEMENT.No Agency or Partnership.  No agency, partnership, joint venture, or employment is created as a result of these Terms or Customer’s use of any part of the Argyle Platform. Customer does not have any authority whatsoever to bind Argyle in any respect. The parties agree that Argyle is a technology company whose primary business is providing a platform with which users can visualize their BIMs on construction sites in augmented reality. Neither Argyle nor any users of the Argyle Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other.  Disputes Between Users.Customer’s interactions with individuals and/or organizations found on or through the Argyle Platform, including Customer’s decision to use Third-Party Products, materials, advice or other information provided by such individuals and/or organizations is Customer’s decision for which Customer alone is responsible. Customer understands and agrees that Argyle does not and cannot make representations as to the suitability of (i) any third party images, information and/or data Customer may access via the Argyle Platform; (ii) any individual or entity Customer may decide to interact with on or through the Argyle Platform and/or (iii) the accuracy or suitability of any advice, information, or recommendations made by any user.IF THERE IS A DISPUTE BETWEEN USERS OF THE ARGYLE PLATFORM, OR BETWEEN ANY USER OF THE ARGYLE PLATFORM AND ANY OTHER THIRD PARTY, CUSTOMER ACKNOWLEDGES AND AGREES THAT ARGYLE IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN CUSTOMER AND ANY OTHER USER OR THIRD PARTY, CUSTOMER HEREBY RELEASES ARGYLE, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES. IF CUSTOMER IS A CALIFORNIA RESIDENT, CUSTOMER WAIVES CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."MISCELLANEOUS.Notices.  All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at the address set forth in the preamble to these Terms (as updated by the parties from time to time pursuant to this Section) by: (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to these Terms shall be in the English language.Governing Law and Venue.  These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Oregon as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form.  Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings. The seat, or legal place of arbitration shall be Multnomah County, Oregon. Notwithstanding the foregoing, Argyle has the right to pursue equitable relief in the state and federal courts located Oregon, and Customer agrees to the exclusive jurisdiction and venue of such courts.Publicity. Argyle has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in Argyle business development and marketing efforts, including without limitation Argyle’s web site.U.S. Government Customers.  If Customer is a Federal Government entity, Supplier provides the Argyle Platform and Argyle Applications, including related software and technology, for ultimate Federal Government end use solely in accordance with the following:  Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Supplier Service and Argyle Applications include only those rights customarily provided to the public, as defined in these Terms. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in these Terms.Export.  The Argyle Platform and Argyle Applications utilize software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Argyle Platform and Argyle Applications shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Argyle Platform and/or Argyle Applications, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Argyle Platform and/or Argyle Applications may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Argyle and its licensors make no representation that the Argyle Platform or Argyle Applications is appropriate or available for use in other locations.iOS Applications.  The following additional terms and conditions apply with respect to any Argyle Application that Argyle provides to you that is designed for use on an Apple iOS-powered mobile device (an “iOS App”):You acknowledge that this Agreement is between you and Argyle only, and not with Apple, Inc. (“Apple”).Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service.Argyle, and not Apple, is solely responsible for the iOS App and the materials available thereon.  You acknowledge that Apple has no obligation to provide maintenance and support services with respect to the iOS App.  To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App.You agree that Argyle, and not Apple, is responsible for addressing any claims by you or any third-party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to us as provider of the iOS App.You agree that Argyle, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App.You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).You agree that Apple and Apple’s subsidiaries are third-party beneficiaries to this Agreement as it relates to your license of the iOS App.  Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against
you as it relates to your license of the iOS App as a third-party beneficiary thereof.General.  Customer shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Argyle. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, these Terms shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. There are no third-party beneficiaries to these Terms. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors, and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for Customer’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.All Users “Customer” agrees to these terms and conditions to access the Argyle platform.
‍PROJECT FORMS; LICENSES; RESTRICTIONS.  Project Forms.  Subject to the terms of this Agreement, Customer may order Services and Argyle Applications by entering into one or more Project Forms. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Argyle regarding any future functionality or features.Access and Use License.  Subject to Customer’s compliance with the terms and conditions contained in these Terms, Argyle, during the relevant Subscription Term, hereby grants Customer and, if applicable its Authorized Users, a limited, non-exclusive, non-transferable right to access and use the Argyle Platform in accordance with the Documentation in each case solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity. Customer’s use of the Argyle Platform may be subject to certain limitations – for example, certain functionality of the Argyle Platform may be limited, as further described in the applicable Project Form.   License to Argyle Applications.  Subject to Customer’s compliance with these Terms, Argyle hereby grants to Customer, during the Term, a limited, non-exclusive, non-transferable and non-sublicensable right to install, execute and use one (1) copy of the applicable Argyle Application on applicable mobile devices or augmented reality headgear owned or leased by Customer, solely in object code form and solely for Customer’s Authorized Purposes. Customer acknowledges and agrees that the Argyle Applications are provided under license, and not sold. Customer does not acquire any ownership interest in the Argyle Applications under these Terms, or any other rights thereto other than to use the Argyle Applications in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. Restrictions.  Customer shall not, directly or indirectly, and Customer shall not permit any Authorized User or third party to:  (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Argyle Platform or the Argyle Applications; (b) modify, translate, or create derivative works based on any element of the Argyle Platform, the Argyle Applications or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Argyle Platform or Argyle Applications; (d) except as otherwise expressly permitted herein, use the Argyle Platform or Argyle Applications for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Authorized Users; (e) remove any proprietary notices from the Documentation or Argyle Applications; (f) use the Argyle Platform or Argyle Applications for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Argyle Platform; (h) introduce any Open Source Software into the Argyle Platform or Argyle Applications; or (i) attempt to gain unauthorized access to the Argyle Platform, the Argyle Applications, Argyle’s related systems or networks, or to the content and data uploaded by other users.Reservation of Rights.  Except as expressly granted in these Terms, there are no other licenses granted to Customer or any Authorized User, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Argyle.THIRD PARTY PRODUCTS AND HOSTING.  Third Party Products.  Customer understands that the successful use of the Argyle Platform will require the procurement of hardware and software components not provided by Argyle (“Third-Party Products”), including but not limited to Autodesk Revit, Autodesk Navisworks, augmented reality headsets and/or other mobile devices. All Third-Party Products shown on the Platform are subject to availability and Argyle does not provide any guarantee of any Third-Party Product’s availability or performance. Third Party Hosting.  Argyle may use the services of one or more third parties to deliver all or part of the Argyle Platform.  Argyle will pass through any warranties to the extent that Argyle receives any from its then current third-party service provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.ACCOUNTS AND PASSWORDS.Accounts.  Customer and all Authorized Users will be required to have an account with Argyle before being permitted to access and use the Argyle Platform. To create an account, the Customer must provide Argyle with current, complete and accurate information about all Authorized Users for whom accounts will be created. All the information provided when registering for an account must be accurate, complete and up to date. Argyle reserves the right to terminate any account for which the provided information is untrue, inaccurate, incomplete or not current.Passwords.  Customer and its Authorized Users shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the person to which it was issued. Customer is solely responsible for any and all access and use of the Argyle Platform that occurs using any Authorized User’s account. Customer shall not share, and shall restrict its Authorized Users from sharing, passwords. Customer agrees to immediately notify Argyle of any unauthorized use of any account or login and password issued to Customer and/or its Authorized Users.  Argyle shall have no liability for any loss or damage arising from Customer’s or its Authorized Users failure to comply with the terms set forth in this Section.No Circumvention of Security.  Neither Customer nor any Authorized User may circumvent or otherwise interfere with any user authentication or security of the Argyle Platform. Customer will immediately notify Argyle of any breach, or attempted breach, of security known to Customer.  CUSTOMER OBLIGATIONS.Customer System.  Customer is responsible for (a) obtaining, deploying and maintaining the Customer System; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Argyle Platform via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing.  Except as specifically set forth in these Terms or a separate agreement between Customer and Argyle referencing these Terms, Argyle shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.Acceptable Use.  Customer shall be solely responsible for its actions and the actions of its Authorized Users while using the Argyle Platform and Argyle Applications.  Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Argyle Platform and Argyle Applications, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Argyle Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Argyle Platform or another's computer, augmented reality device, or mobile device; (d) not to use the Argyle Platform or Argyle Applications for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the Argyle Platform or interfere with others’ ability to access or use the Argyle Platform; (f) not to distribute, promote or transmit through the Argyle Platform any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) to comply with all regulations, policies and procedures of networks connected to the Argyle Platform and Argyle’s service providers; and (i) to use the Argyle Platform and Argyle Applications only in accordance with the Documentation.  Customer acknowledges and agrees that Argyle neither endorses any Customer communications or Customer Data, nor does Argyle assume any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby.  Argyle may, but is not required to, remove any violating content posted or stored using the Argyle Platform or transmitted through the Argyle Platform, without notice to Customer.  Notwithstanding the foregoing, Argyle does not guarantee and is not obligated to verify, authenticate, monitor or edit the Customer Data, or any other information or data input into or stored in the Argyle Platform for completeness, integrity, legality, quality, accuracy or otherwise.  Customer shall be responsible and liable for the completeness, integrity, legality, quality and accuracy of Customer Data and other information input into the Argyle Platform.  Customer shall be solely responsible for ensuring compliance with applicable laws and regulations in its use of the Argyle Platform. Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Argyle to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Argyle of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Argyle at the e-mail addresses specified by it for login purposes. In addition, Customer agrees that Argyle may rely and act on all information and instructions provided to Argyle by Authorized Users from such e-mail addresses.Temporary Suspension.  Argyle may temporarily suspend Customer’s or its Authorized Users’ access to the Argyle Platform in the event that either Customer or any of its Authorized Users is engaged in, or Argyle in good faith suspects Customer or any of its Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Argyle will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Argyle’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include its Authorized Users’ accounts. Customer agrees that Argyle shall not be liable to Customer, Authorized Users, or any third party if Argyle exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Argyle’s reasonable satisfaction, Argyle shall reinstate Customer’s and its Authorized Users’ access to and use of the Argyle Platform. Notwithstanding anything in this Section to the contrary, Argyle’s suspension of access to the Argyle Platform is in addition to any other remedies that Argyle may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Argyle may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.AVAILABILITY; SECURITY.Availability.  Subject to the terms and conditions of these Terms, Argyle will use commercially reasonable efforts to make the Argyle Platform available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime, or (b) unavailability caused by circumstances beyond Argyle’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays. Argyle may make changes to the Argyle Platform and/or Argyle Applications at any time and without notice to Customer. Certain enhancements to the Argyle Platform and Argyle Applications made generally available at no cost to all users during the applicable Term will be made available to Customer at no additional charge.  However, the availability of some new enhancements to the Argyle Platform and Argyle Applications may require the payment of additional fees, and Argyle will determine in its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Argyle Platform and Argyle Applications include, any enhancements, updates, upgrades and new modules to the Argyle Platform provided in connection therewith and subsequently provided by Argyle to Customer hereunder.Security; Privacy Policy.  Argyle will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data in a manner consistent with what Argyle supplies generally to its other users.  Please review Argyle’s privacy policy, which is available on the Argyle Website (the “Privacy Policy”) and which further explains how Argyle collects and uses the Customer Data and other information that Argyle collects through users’ use of the Argyle Platform. ANCILLARY SERVICES. Argyle shall use commercially reasonable efforts to perform the Ancillary Services as set forth in applicable Project Forms.  Each such Project Form will include, at a minimum: (a) a description of the Ancillary Services, (b) any work product or other deliverables to be provided to Customer (each a “Deliverable”), (c) the schedule for the provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary Services.  Project Forms that include Ancillary Services may also contain additional terms and conditions that apply to the provision of such Ancillary Services.  Such additional terms are incorporated herein by reference. Argyle and Customer shall cooperate to enable Argyle to perform the Ancillary Services according to the dates of performance and delivery terms set forth in each applicable Order Form.  In addition, Customer shall perform any Customer obligations specified in each Order Form.  In the event the Ancillary Services are not performed in accordance with the terms of the applicable Order Form, Customer shall notify Argyle in writing no later than thirty (30) calendar days after performance of the affected Ancillary Services, Customer’s notice shall specify the basis for non-compliance with the Order Form and if Argyle agrees with the basis for non-compliance, then at Argyle’s sole option, Argyle shall re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the applicable fees for the affected Deliverable or Ancillary Service.  THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ARGYLE’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE ANCILLARY SERVICES.FEES AND PAYMENT.Fees. Customer agrees to pay all applicable fees using one of the payment methods Argyle supports. Except as otherwise specified in these Terms, (a) fees are based on Services and software licenses purchased, regardless of actual usage, and (b) payment obligations are non-cancelable and fees paid are non-refundable.  Subscription fees are based on annual periods that begin on the Subscription Term start date and each anniversary thereof. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.Payment. Argyle will invoice customer for the amounts set forth in applicable Project Forms and payment of such invoices is due upon the date set forth for such payment in the Project Form.  Customer agrees that Argyle may invoice Customer for any unpaid fees, including without limitation any amounts owed by Customer that cannot be processed.  Customer is responsible for providing complete and accurate billing and contact information to Argyle and notifying Argyle of any changes to such information. Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.  Overdue Charges.  If Argyle does not receive fees by the due date, then at Argyle’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Argyle may condition future purchases of Services on payment terms shorter than those specified in Section 7.2 (Payment).Suspension of Service. If any amounts owed by Customer for the Services are more than thirty (30) days overdue, Argyle may, without limiting Argyle’s other rights and remedies, suspend Customer’s and its Authorized Users’ access to the Argyle Platform until such amounts are paid in full; provided that Argyle agrees that it will not exercise its rights under this Section if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.Taxes. The fees applicable to Customer’s and its Authorized Users’ use of the Argyle Platform are exclusive of all sales, use, value added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Argyle’s net income). REPRESENTATIONS AND WARRANTIES; DISCLAIMER.Mutual Representations and Warranties.  Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust. Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, THE ARGYLE PLATFORM, ARGYLE APPLICATIONS, ANCILLARY SERVICES AND SUPPORT SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE AND RECEIPT OF THE ARGYLE PLATFORM, ARGYLE APPLICATIONS, ANCILLARY SERVICES AND SUPPORT SERVICES IS AT ITS OWN RISK.  ARGYLE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  THE EXPRESS WARRANTIES MADE BY ARGYLE IN SECTION 8 ARE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE ARGYLE PLATFORM IS LICENSED AND NOT SOLD. NO WARRANTIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE LICENSE TERM OF ANY BETA LICENSE.ANY WARRANTY FOR THIRD-PARTY PRODUCTS WILL BE THE WARRANTY PROVIDED BY THE MANUFACTURER OF SUCH THIRD-PARTY PRODUCT DIRECTLY TO CUSTOMER.  ARGYLE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE THIRD-PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY, ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  NO AGENT OF ARGYLE IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF ARGYLE AS SET FORTH HEREIN. ARGYLE DOES NOT WARRANT THAT: (A) THE USE OF THE ARGYLE PLATFORM OR ARGYLE APPLICATIONS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES OR ARGYLE APPLICATIONS WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE ARGYLE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES OR ARGYLE APPLICATIONS WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE ARGYLE PLATFORM OR ARGYLE APPLICATIONS WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE ARGYLE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ARGYLE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS OR TRANSACTIONS MADE BY CUSTOMER AND ITS AUTHORIZED USERS IN USING THE SERVICES.  CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) USE OF THE SERVICES IS AT THE SOLE RISK OF CUSTOMER AND ITS AUTHORIZED USERS; (B) ARGYLE SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION IN USE OF THE SERVICES, DELAYS OR ERRORS CAUSED BY CUSTOMER'S USE OF THE SERVICES, OR ANY PART THEREOF; (C) ARGYLE IS NOT THE MANUFACTURER OF ANY THIRD-PARTY PRODUCT; AND (D) ARGYLE SHALL NOT BE RESPONSIBLE FOR (i) MISREPRESENTATIONS OF ANY THIRD-PARTY PRODUCT MANUFACTURER OR (ii) THE FULFILLMENT OF ANY THIRD-PARTY PRODUCT ORDERS PLACED BY CUSTOMER, INCLUDING, WITHOUT LIMITATION, THE CANCELLATION OF ANY SUCH ORDERS AND/OR THE RETURN OR SERVICING OF ANY THIRD-PARTY PRODUCTS. CUSTOMER SHALL HOLD ARGYLE AND ITS DIRECTORS, MEMBERS, SHAREHOLDERS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS AND/OR EXPENSES (INCLUDING REASONABLE LEGAL FEES) ARISING OUT OF CUSTOMER'S USE OF THE SERVICES.INDEMNIFICATION. Argyle Indemnity.  General.  During the Term (other than with respect to a Beta License), Argyle, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Argyle Platform or Argyle Applications infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing such Third-Party Claim.  Argyle’s obligations under this Section are conditioned upon (i) Argyle being promptly notified in writing of any Third-Party Claim under this Section, (ii) Argyle having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (iii) Customer providing all reasonable assistance (at Argyle’s expense and reasonable request) in the defense of such Third-Party Claim.  In no event shall Argyle settle any such Third-Party Claim without Customer’s prior written approval.  Customer may, at its own expense, engage separate counsel to advise Customer regarding a Third-Party Claim and to participate in the defense of the Third-Party Claim, subject to Argyle’s right to control the defense and settlement.Mitigation.  If any claim which Argyle is obligated to defend has occurred, or in Argyle’s determination is likely to occur, Argyle may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Argyle Platform and/or Argyle Applications, (b) substitute a functionality equivalent, non-infringing replacement for the Argyle Platform and/or Argyle Applications, (c) modify the Argyle Platform and/or Argyle Applications to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Argyle Platform and/or Argyle Applications due to such claim and the remaining days in the then-current Subscription Term.Exclusions.  Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the Argyle Platform and/or Argyle Applications in combination with any software, hardware, network or system not supplied by Argyle where the alleged infringement relates to such combination, (iii) any modification or alteration of the Argyle Platform and/or Argyle Applications other than by Argyle, (iv) Customer’s continued use of the Argyle Platform and/or Argyle Applications after Argyle notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law; and/or (vi) the Customer System.Sole Remedy.  THE FOREGOING STATES THE ENTIRE LIABILITY OF ARGYLE WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE ARGYLE PLATFORM, ARGYLE APPLICATIONS OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF ARGYLE WITH RESPECT THERETO. NOT WITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION 9.1, NO INDEMNITIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT WITH RESPECT TO ANY BETA LICENSE.Customer Indemnity.  Customer shall defend Argyle and its affiliates, licensors and their respective officers, directors and employees (“Argyle Indemnified Parties”)  from and against any and all actions, proceedings, claims and demands by a third party (each a “Third-Party Claim”) which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Argyle of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights or privacy rights; (b) Customer’s use or alleged use of the Argyle Platform in violation of applicable law or other than as permitted under these Terms or (c) Customer’s use of any Third-Party Products. Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any Third-Party Claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (z) Argyle providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such Third-Party Claim. In no event shall Customer settle any such Third-Party Claim without Argyle’s prior written approval.  Argyle may, at its own expense, engage separate counsel to advise Argyle regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.CONFIDENTIALITY. Confidential Information.  Each party (the “Receiving Party”) hereby understands and acknowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s or its suppliers’ business or products (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Argyle shall include the Argyle Applications any and all non-public information regarding features, functionality and performance of the Argyle Platform and the Third-Party Products. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.Injunctive Relief.  The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.PROPRIETARY RIGHTS. Argyle Platform and Argyle Argyle Applications.  As between Argyle and Customer, all right, title and interest in the Argyle Platform, the Argyle Applications and any other Argyle materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Argyle Platform or Argyle Applications, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Argyle or Argyle’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Argyle all evaluations, ideas, feedback and suggestions made by Customer to Argyle regarding the Argyle Platform (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.  Customer Data.  As between Argyle and Customer, all right, title and interest in the Customer Data, belongs to and is retained solely by Customer. By posting, displaying, sharing or distributing Customer Data on or through the Argyle Platform, Customer hereby grants to Argyle a limited, sublicenseable non-exclusive, royalty-free, worldwide license to reproduce, display, publicly perform, distribute and otherwise use the Customer Data, and perform all acts with respect to the Customer Data as may be necessary for Argyle to provide the Services to Customer. Argyle may modify, copy, translate or make any derivative works of Customer Data in connection with its provision of the Argyle Platform as required to format such Customer Data for presentation within the Argyle Platform, to continually improve the Argyle Platform and to develop new services and offerings.Aggregated Statistics.  Notwithstanding anything else in these Terms or otherwise, Argyle may monitor Customer’s use of the Services and use Customer Data and other data and information related to such use, in an aggregate and anonymous manner, including to compile statistical and performance information related to Argyle Platform and its users (“Aggregated Statistics”). As between Argyle and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Argyle. Customer acknowledges that Argyle will be compiling Aggregated Statistics based on Customer Data and information input by other customers into the Argyle Platform and Customer agrees that Argyle may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.Argyle Developments.  All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Argyle, whether solely or jointly, including without limitation, in connection with Argyle’s performance of the Ancillary Services hereunder, including (unless otherwise expressly set forth in an applicable Project Form) all Deliverables (“Argyle Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of Argyle.  Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Argyle Developments is not, by operation of law or otherwise, vested in Argyle, Customer hereby assigns and agrees to assign to Argyle all right, title and interest in and to such Argyle Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.Further Assurances.  To the extent any of the rights, title and interest in and to Feedback or Argyle Developments or Intellectual Property Rights therein cannot be assigned by Customer to Argyle, Customer hereby grants to Argyle an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest.  If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Argyle those non-assignable and non-licensable rights, title and interest.  Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Argyle may reasonably request, to perfect ownership of the Feedback and Argyle Developments.  If Customer is unable or unwilling to execute any such document or take any such action, Argyle may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact.  The foregoing appointment is deemed a power coupled with an interest and is irrevocable.  License to Deliverables.  Subject to Customer’s compliance with this Agreement, Argyle hereby grants Customer a limited, non-exclusive, non-transferable license during the applicable Subscription Term(s), to use the Deliverables solely in connection with Customer’s authorized use of the Argyle Service. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by Argyle to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.LIMITATION OF LIABILITY.No Consequential Damages.  NEITHER ARGYLE NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF ARGYLE OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE ARGYLE PLATFORM, ARGYLE APPLICATIONS, ANCILLARY SERVICES, THIRD-PARTY PRODUCTS, SUPPORT SERVICES AND/OR THE RESULTS THEREOF.  ARGYLE WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.Limits on Liability.  NEITHER ARGYLE NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO ARGYLE UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.Essential Purpose.  CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.TERM AND TERMINATION.  Term.  The term of these Terms commences upon the execution of an applicable Project Form and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms or in an applicable separate agreement between Customer and Argyle referencing these TermsTermination for Cause.  A party may terminate these Terms upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing  or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree.  In no event shall any termination relieve Customer of the obligation to pay any fees payable to Argyle for the period prior to the effective date of termination.Effects of Termination.  Upon expiration or termination of these Terms, (a) Customer’s use of and access to the Argyle Platform and Argyle’s performance of all Support Services and Ancillary Services shall cease; (b) Customer and its Authorized Users shall cease all use of and uninstall all copies of the Argyle Applications; and (c) all fees and other amounts owed to Argyle shall be immediately due and payable by Customer. Argyle shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete or retain all Customer Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing. Survival.  This Section and Sections 1, 2.4, 2.5, 5.2, 9.2, 10, 11, 12, 13, 14.3, 15 and 16 shall survive any termination or expiration of these Terms. DISPUTES BETWEEN USERS; INTELLECTUAL PROPERTY INFRINGEMENT.No Agency or Partnership.  No agency, partnership, joint venture, or employment is created as a result of these Terms or Customer’s use of any part of the Argyle Platform. Customer does not have any authority whatsoever to bind Argyle in any respect. The parties agree that Argyle is a technology company whose primary business is providing a platform with which users can visualize their BIMs on construction sites in augmented reality. Neither Argyle nor any users of the Argyle Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other.  Disputes Between Users.Customer’s interactions with individuals and/or organizations found on or through the Argyle Platform, including Customer’s decision to use Third-Party Products, materials, advice or other information provided by such individuals and/or organizations is Customer’s decision for which Customer alone is responsible. Customer understands and agrees that Argyle does not and cannot make representations as to the suitability of (i) any third party images, information and/or data Customer may access via the Argyle Platform; (ii) any individual or entity Customer may decide to interact with on or through the Argyle Platform and/or (iii) the accuracy or suitability of any advice, information, or recommendations made by any user.IF THERE IS A DISPUTE BETWEEN USERS OF THE ARGYLE PLATFORM, OR BETWEEN ANY USER OF THE ARGYLE PLATFORM AND ANY OTHER THIRD PARTY, CUSTOMER ACKNOWLEDGES AND AGREES THAT ARGYLE IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN CUSTOMER AND ANY OTHER USER OR THIRD PARTY, CUSTOMER HEREBY RELEASES ARGYLE, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES. IF CUSTOMER IS A CALIFORNIA RESIDENT, CUSTOMER WAIVES CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."MISCELLANEOUS.Notices.  All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at the address set forth in the preamble to these Terms (as updated by the parties from time to time pursuant to this Section) by: (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to these Terms shall be in the English language.Governing Law and Venue.  These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Oregon as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form.  Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings. The seat, or legal place of arbitration shall be Multnomah County, Oregon. Notwithstanding the foregoing, Argyle has the right to pursue equitable relief in the state and federal courts located Oregon, and Customer agrees to the exclusive jurisdiction and venue of such courts.Publicity. Argyle has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in Argyle business development and marketing efforts, including without limitation Argyle’s web site.U.S. Government Customers.  If Customer is a Federal Government entity, Supplier provides the Argyle Platform and Argyle Applications, including related software and technology, for ultimate Federal Government end use solely in accordance with the following:  Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Supplier Service and Argyle Applications include only those rights customarily provided to the public, as defined in these Terms. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in these Terms.Export.  The Argyle Platform and Argyle Applications utilize software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Argyle Platform and Argyle Applications shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Argyle Platform and/or Argyle Applications, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Argyle Platform and/or Argyle Applications may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Argyle and its licensors make no representation that the Argyle Platform or Argyle Applications is appropriate or available for use in other locations.iOS Applications.  The following additional terms and conditions apply with respect to any Argyle Application that Argyle provides to you that is designed for use on an Apple iOS-powered mobile device (an “iOS App”):You acknowledge that this Agreement is between you and Argyle only, and not with Apple, Inc. (“Apple”).Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service.Argyle, and not Apple, is solely responsible for the iOS App and the materials available thereon.  You acknowledge that Apple has no obligation to provide maintenance and support services with respect to the iOS App.  To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App.You agree that Argyle, and not Apple, is responsible for addressing any claims by you or any third-party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to us as provider of the iOS App.You agree that Argyle, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App.You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).You agree that Apple and Apple’s subsidiaries are third-party beneficiaries to this Agreement as it relates to your license of the iOS App.  Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you it relates to your license of the iOS App as a third-party beneficiary thereof.General.  Customer shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Argyle. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, these Terms shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. There are no third-party beneficiaries to these Terms. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors, and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for Customer’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.