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Newforma



TERMS & CONDITIONS

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Effective: January 1, 2021

These Terms and Conditions (as amended from time to time, these “Terms and
Conditions”) are by and between you (together with any legal entity by which you
are employed or which you otherwise represent, “you” or “your”) and Newforma,
Inc., a Delaware corporation with a principal office address of 1750 Elm Street,
9th Floor, Manchester, New Hampshire 03104, USA., or one of its direct or
indirect subsidiaries (“Newforma”) providing the applicable Service (as defined
below) pursuant to the Agreement (as defined below) with Customer (as defined
below).

The purpose of these Terms and Conditions is to set forth the general terms and
conditions applicable to your use of any Service.  For the avoidance of doubt,
the Services are separate and distinct from the Consulting Services (as defined
below).  By using a Service, you acknowledge and agree that you are bound by
these Terms and Conditions, as amended from time to time in accordance with, and
subject to, their terms, with respect to such Service.

THESE TERMS AND CONDITIONS REPRESENT A BINDING AGREEMENT BETWEEN NEWFORMA AND
YOU.  DO NOT USE, OR CONTINUE TO USE, ANY SERVICE UNTIL YOU HAVE CAREFULLY READ
THESE TERMS OF USE.

BY USING A SERVICE, YOU AS AN AUTHORIZED USER ARE AGREEING TO THESE TERMS AND
CONDITIONS, INCLUDING THE LIMITATIONS OF LIABILITY SET FORTH HEREIN.

BY PLACING AN ORDER, CUSTOMER IS AGREEING TO THESE TERMS AND CONDITIONS,
INCLUDING THE LIMITATIONS OF LIABILITY SET FORTH HEREIN.

 If you do not agree with any part of these Terms and Conditions with respect to
a particular Service, then you must stop use of such Service immediately.  If
you have any questions about these Terms and Conditions, then please contact:
Newforma, Inc., 1750 Elm Street, 9th Floor, Manchester, NH 03104, U.S.A., Attn:
Legal.

1. DEFINITIONS. As used in these Terms and Conditions, the following terms have
the following meanings:

 * “Agreement” shall individually and collectively refer to these Terms and
   Conditions together with any Order Form (as defined below) and any separate
   engagement document with respect to Consulting Services as accepted by
   Customer, if any.
 * “Application” means any software application owned, developed, licensed
   and/or maintained by Newforma and made available for download, access and/or
   use, as the context may require, including, without limitation, the following
   applications: Newforma® Project Center, Newforma® InfoExchange, Newforma®
   Project Center Cloud Services, Newforma® ConstructEx™ (formerly Project
   Cloud), and any Newforma® Mobile Application.
 * “Authorized User” means, with respect to an Application, you as any natural
   person, entity, business, enterprise and/or computer application or process
   that Customer is permitted by Newforma to grant access to such Application,
   including, without limitation, (a) an employee of Customer, or (b) any third
   party (including any consultant, subcontractor, agent, vendor, client or
   other person) Customer may designate to access the Application on behalf of,
   and/or in connection with, Customer.
 * “Consulting Services” shall mean certain consulting, implementation,
   configuration, training and/or technical services that may be provided by
   Newforma for Customer in accordance with the Agreement. Again, Consulting
   Services are separate and distinct from the Services.
 * “Content” refers to all PDF files, data and any other information or
   materials uploaded by, or on behalf of, you to an Application or the Site in
   connection with your use of a Service.
 * “Customer” means the person or entity that placed an Order.
 * “Data Protection Addendum” means the Newforma Data Protection Addendum, as
   amended from time to time in accordance with these Terms and Conditions, and
   posted to the Site at newforma.com/dpa/.
 * “Device” means any device upon which an Application can be downloaded,
   installed, accessed and/or used.
 * “Documentation” means the online or other documentation provided by Newforma
   as part of, or in the course of providing, a Service or the Consulting
   Services, including, without limitation, any documentation describing an
   Application and/or its use. You shall use the Documentation only as expressly
   permitted in this Agreement.
 * “Service” means, individually or collectively, an Application and the Site
   (as defined below).
 * “Site” means, individually or collectively, newforma.com and all related URLs
   owned, and/or operated, by Newforma.
 * “Order” means an order for a Service placed by a Customer and accepted by
   Newforma, or a proposal for a Service offered by Newforma and accepted by
   Customer, whether by executing an Order Form, by purchasing access to such
   Service by downloading the applicable Application and making payment for such
   access by credit card or other electronic means, if available, or by
   downloading and/or using the applicable Application for a free trial, if
   available.
 * “Order Form” means an order form, proposal, agreement or other document
   executed by Customer that specifies a Service and certain Consulting
   Services, if any, purchased by the Customer and such other information
   reasonably required by Newforma in order to provide such Service and/or
   Consulting Services, including, without limitation, the Subscription Term, if
   applicable, fees and payment terms.
 * “Privacy Policy” means the Newforma Privacy Policy, as amended from time to
   time in accordance with its terms, and posted to the Site at
   newforma.com/privacy-policy/.
 * “Subscription Term” means a stated period, if any, of days, weeks, months or
   years during which a Service may be used by Customer and its Authorized
   Users, and provided by Newforma, as specified in the Order Form.

2. LICENSE TO USE SERVICES. Upon placing an Order, the following provisions
shall apply:

2.1  Service, Grant of License.

(a) Subject to your compliance with the Agreement, during the Subscription Term,
if applicable, or such other time period as described or contemplated in the
applicable Order Form for a Service, Newforma grants to Customer and each of its
Authorized Users a non-exclusive, non-transferable, revocable right to download,
install, access and/or use, as the case may be, the Application described in
such Order Form on any Device by using a designated e-mail address (or other
unique identifier if permitted by Newforma) and password for each Authorized
User (“Credentials”), and to use the applicable Documentation, all solely in
conjunction with Customer’s licensed use of the ordered Service.  Except for the
limited rights expressly granted to Customer and its Authorized Users hereunder,
Newforma reserves all rights, title and interest in, and to, each of the
Services, including the underlying software, the Documentation, and the
Consulting Services, including, without limitation, all related intellectual
property rights inherent therein.  Newforma does not grant to Customer or any
Authorized User any rights whatsoever in relation to any of the Services other
than the rights as expressly set forth in the Agreement.  The Application
described in such Order may be used on as many Devices as you want.

(b) To register for use of an Application as an Authorized User, you will need
to provide an email address (or other unique identifier if permitted by
Newforma) and create a password.  The Credentials are used by Newforma to
authenticate and monitor your use and access of the Application on any
applicable Device and your account on the Site, if applicable, and may also be
used by Newforma to perform its support and training obligations under the
Agreement.  Customer and its Authorized User are responsible for all access
granted to, and uses of, the Application or the Site by users that have logged
in using such Authorized User’s Credentials, including, without limitation, use
by others to whom you may have given such Authorized User’s Credentials.
 Customer and its Authorized User shall be responsible for maintaining and
protecting such Authorized User’s Credentials and the Content.  Customer and its
Authorized User are solely responsible for any activity of users logged into
such Authorized User’s account, whether or not such activity was authorized. You
should immediately notify Newforma of any unauthorized use of an Authorized
User’s account or if your email (or other unique identifier if applicable) or
password has been hacked, stolen or compromised in any way.  If you discover
that someone is using your password or account without your consent, then you
shall notify Newforma immediately.  In such event, Newforma reserves the right
to suspend or discontinue all or part of your access to the Services until such
time Newforma is reasonably satisfied that someone is not using your password or
account without your consent.

(c)  So long as Customer or any of its Authorized Users are not in breach of
this Agreement, in consideration of the fees paid for a Service, Newforma will
provide Customer with all upgrades to such Service made available by Newforma
generally to its customers.  Customer shall have a right to use such upgrades on
these Terms and Conditions.  Notwithstanding the foregoing, a Service will not
include, and the fees paid for such Service will not cover, any future
additional products or packages that are sold separately by Newforma, unless
otherwise agreed to in writing by Newforma in its sole discretion.

2.2 Ownership. You acknowledge that (a) all right, title and interest in, and
to, the Services, the Applications, the Site and the Documentation, and all
patents, copyrights, trade secret rights, trademarks, trade names, services
marks and other proprietary rights embodied therein, or associated therewith,
are those of, and shall remain with, Newforma and/or its third party licensors,
if applicable; (b) this Agreement conveys no right, or interest, in the
Services, the Applications, the Site or the Documentation other than a limited
right to use the same in accordance with the Agreement; (c) the Services, the
Applications, the Site and the Documentation are protected by the copyright laws
of the United States and international treaties; and (d) Newforma asserts that
the Services, the Applications, the Site and the Documentation embody valuable
confidential and secret information of Newforma, the development of which
required the expenditure of considerable time and money.

2.3 Your Content (a) You may upload Content through an Application in connection
with your use of the applicable Service.  Newforma does not own any of your
Content.  You shall have the sole responsibility for the accuracy, quality,
integrity, legality, reliability and appropriateness of your Content.  Such
Content shall be stored and/or backed-up on Customer’s servers, Newforma’s
servers or on servers of third parties, as the case may be, for a particular
Application, as reasonably necessary for Newforma to provide its Services.
 Newforma will not share your Content with non-affiliate third parties without
your permission, except to meet its obligations to Customer under the Agreement
or as otherwise may be provided in the Privacy Policy or Data Protection
Addendum.

(b) You represent and warrant that (i) you are the owner, or legal custodian, of
all of your Content and have the full authority to transmit and store your
Content using a Service; and (ii) you will not upload, record, publish, post,
link to, or otherwise transmit or distribute Content that: (A) advocates,
promotes, incites, instructs, informs, assists, or otherwise encourages,
violence or any illegal activities; (B) infringes, or violates, the copyright,
patent, trademark, service mark, trade name, trade secret, or other intellectual
property rights of any third party or Newforma, or any rights of publicity or
privacy of any party; (C) attempts to mislead others about your identity or the
origin of a message or other communication, or impersonates or otherwise
misrepresents your affiliation with any other person or entity, or is otherwise
materially false, misleading, or inaccurate; (D) promotes, solicits or comprises
inappropriate, harassing, abusive, profane, hateful, defamatory, libelous,
threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable
or unlawful content or activity; (E) is harmful to minors; (F) contains any
viruses, Trojan horses, worms, time bombs, or any other similar software, data,
or programs that may damage, detrimentally interfere with, surreptitiously
intercept, or expropriate any system, data, personal information, or property of
another; or (G) violates any law, statute, ordinance, or regulation (including,
without limitation, the laws and regulations governing export control, unfair
competition, anti-discrimination, or false advertising).

(c) Customer and each Authorized User acknowledges that other Authorized Users
may have access to your Content, and you acknowledge the risks in allowing other
Authorized Users access to your Content, including the risk that (i) your
Content is deleted, modified, corrupted or destroyed by other Authorized Users
within a Service; (ii) that files containing your Content are contaminated by
viruses or other malware introduced by other Authorized Users; (iii) that
confidential information in such Content is made available to other Authorized
Users; and (iv) that such Content could be subsequently disclosed or otherwise
made available to third parties by other Authorized Users under circumstances
where the confidentiality of such Content is not protected.  Newforma shall not
be responsible for the deletion, modification, corruption, destruction or loss
of your Content resulting from any action or inaction of Customer or any other
Authorized User.

(d) Customer and each Authorized User acknowledges that the Services are
automated (e.g., Content is uploaded and submitted using software tools) and
that Newforma personnel may access any Content to provide the Services,
including, but not limited to, the following: (i) during any service
interruption, as necessary to restore the applicable Content; (ii) to
troubleshoot any issue with the Services or to help improve the Services; or
(iii) as deemed necessary or advisable by Newforma to ensure compliance with
this Agreement or to conform to legal requirements or comply with legal process.

(e) The Services include features that allow you to share Content with others
and/or to make it public.  There are many things that users may do with that
Content (including copying it, modifying it, and/or re-sharing it). Newforma has
no responsibility for such activity.  You should consider carefully what you
choose to share or make public.

2.4 Restrictions on Use.  In connection with your access or use of a Service,
you agree to not misuse the Services.  For example, you must not, and must not
attempt to, use a Service to do any of the following:

 * Breach any law, third party rights or any applicable codes or regulations;
 * probe, scan, or test the vulnerability of any system or network;
 * send unsolicited or unwelcome messages;
 * collect or store personal data without proper permission;
 * access, tamper with, or use non-public areas of the Site or an Application,
   shared areas you have not been invited to, or Newforma or any third party
   computer systems;
 * breach or otherwise circumvent any security or authentication measures;
 * plant malware or otherwise use the Site or an Application to distribute
   malware;
 * interfere with, or disrupt, any user, host, or network, for example by
   sending a virus, overloading, flooding, spamming, or mail-bombing any part of
   the Site or an Application;
 * send altered, deceptive or false source-identifying information, including
   “spoofing” or “phishing”;
 * publish anything that is fraudulent, misleading, or infringes another’s
   rights;
 * undertake promotions or general marketing or sales activity;
 * impersonate or misrepresent your affiliation with any person or entity; or
 * publish or share materials that are unlawfully pornographic or indecent, or
   that advocate bigotry or religious, racial or ethnic hatred.

2.5 Certain Obligations. (a) You are responsible, at your expense, for obtaining
and maintaining all of the hardware, software, internet and other services that
you may need to use a Service.  You are responsible for protecting and
safeguarding any keys, certificates, passwords, access codes, user ID’s or other
login information (collectively, “Passwords“) that are provided to you or that
are generated in connection with your use of a Service.

(b) You (i) shall not interfere, or attempt to interfere, with or disrupt the
integrity, security, functionality or proper operation of a Service; (ii) shall
not attempt to copy, alter, modify, adapt, translate or create derivative works
of any Service, any Application or the Documentation; (iii) shall not attempt to
reverse engineer, disassemble, decompile or otherwise attempt to discover the
source code of, any Application; (iv) shall not attempt to discover or use any
license keys, access codes, passwords or similar information made available to
Newforma or others from time to time in connection with any Service; (v) shall
not attempt to discover, access, read, alter, destroy, or damage any data or
other information stored via any Service by any other party; (vi) shall not
disclose or make any Password(s) available to any other person; and (vii) shall
use all commercially reasonable efforts to prevent unauthorized access to, or
use of, an ordered Service.

(c) You are fully responsible for all user activities that occur on any Service
under your Password(s).

(d)  Customer and its Authorized Users shall cooperate with any security
measures that are provided by Newforma as a part of a Service.  Since Newforma’s
sole intent in implementing such measures will be to prevent the unauthorized
use, duplication and/or transfer of the Service, as the case may be, under no
circumstances will Newforma employ any such measure to interfere with Customer’s
normal and permitted operation of the Service.

2.6 Suspension, Limitation or Termination. (a) Newforma shall be entitled in
accordance with the terms of the Agreement, without liability to you, to
suspend, terminate or limit your access to, or use of, the Services or any
portion thereof at any time if you breach any term of the Agreement.

(b) In addition, Newforma shall have the right, without liability to you, to
suspend, terminate or limit your access to, or use of, a Service or any portion
thereof if such access is suspended, terminated or limited by Newforma’s service
providers for any reason, including, without limitation, in the event (i) that a
service provider determines that such Service is being used in violation of
applicable federal, state or local law or ordinance; (ii) that a service
provider determines that such Service is being used in an unauthorized or
fraudulent manner; (iii) that a service provider determines that your use of
such Service violates such service provider’s acceptable use policy, (iv) that a
service provider determines that the use of such Service adversely affects such
service provider’s equipment or service to others; (v) that a service provider
is prohibited by an order of a court or other governmental agency from providing
such Service; (vi) of a denial of service attack or any other event which a
service provider determines, in its sole discretion, may create a risk to its
service or to any other customers if such Service was not suspended; or (vii) of
a security incident or other disaster that impacts such Service or the security
of any content stored via such Service.  Your access to, and use of, such
Service may also be suspended for the duration of any scheduled maintenance or
unscheduled downtime or unavailability of any portion or all of such Service for
any reason, including as a result of power outages, system or internet failures
or other interruptions, or any other acts, omissions or failures on the part of
Newforma’s service providers.

2.7 Third Party Software.  A Service may utilize Third Party Software. As used
herein, “Third Party Software” means third party computer programs to which you
are provided electronic access in connection with the use of a Service.  Your
use of Third Party Software in connection with any Service shall be subject to
the terms and conditions set forth herein and any other terms and conditions
placed on the use of the Third Party Software by its licensor.  Customer and its
Authorized Users may not use any Third Party Software contained in, or provided
with, a Service separately from Customer’s use of such Service.

2.8 Consulting Services.  (a)  With respect to a Service, Newforma will provide
Customer with the same basic level of implementation, deployment, configuration
and/or training services, as the case may be, that Newforma provides to its
customers generally for such Service and as indicated in the applicable Order
Form either directly by Newforma or one of its authorized service business
partners.  Any additional Consulting Services (e.g., training, configuration,
consulting, etc.) that are desired during the Subscription Term will be set
forth in a mutually agreed upon statement of work.  Customer shall provide
Newforma with all information, access and cooperation reasonably necessary to
facilitate the provision of the Consulting Services.  Customer acknowledges and
agrees that, unless otherwise specified on the Order Form, any Consulting
Services ordered but not performed (other than as a result of Newforma’s breach
of the Agreement) within twelve (12) months of ordering such Consulting Services
will be forfeited by Customer and that Newforma may, at its option and in its
sole discretion, perform such Consulting Services after such twelve (12) month
period.

(b)  Customer acknowledges that Newforma shall be the exclusive owner of all
rights set out in Section 2.2 above, together with all software, designs,
technology and inventions made, conceived, or reduced to practice, by, or on
behalf of, Newforma or its affiliates in the course of performing Consulting
Services and all copyright, patent and other intellectual property rights in
such work product (collectively, the “Work Product”).  Customer hereby assigns
to Newforma all right, title and interest in any Work Product which it may have
and will do anything necessary to effect title in, and to, such rights into the
name of Newforma.  Upon payment in full of any amounts due for Consulting
Services, any Work Product which is software to be used for Customer’s internal
business purposes shall be subject to these Terms and Conditions.

2.9 Support.  (a)  In consideration of the fees paid for a Service, Newforma
will provide Customer’s authorized contacts as indicated on an Order Form or
such other contacts as agreed upon by Newforma in its sole discretion (each, an
“Authorized Contact”) the same basic technical and product support to the
Customer that Newforma provides to its customers generally for such Service or
as otherwise agreed upon in writing by Newforma and Customer in an Order Form;
provided that Newforma shall have no obligation to provide any such support in
the event Customer has failed to pay any amounts due to Newforma for a Service
or any Consulting Services or in the event Customer has otherwise breached the
Agreement and such breach, if curable, has not been cured within thirty (30)
days of notice of such breach or such longer period as agreed to in writing by
Newforma in its sole discretion.

(b)  Support includes the following:

 * Online Knowledge Base
 * Online Help, including Feature Overviews, FAQs, and downloadable Reference
   Guides
 * Online Video Tutorials
 * Email Support
 * Chat and Phone

(c)  Only Customer’s Authorized Contacts will be given password access for any
secure administrative rights, if any, for a Service; however, all Authorized
Users will have access to all of the public information resources, videos,
knowledge base and discussion forums available through www.newforma.com.

(d)  Support is available Monday through Friday from 8AM to 5PM Customer’s local
time (excluding holidays).  Unless otherwise agreed to in writing, support for a
Service does not include support for any Consulting Services.  Support may be
provided on behalf of Newforma by one of its authorized business partners.  In
no event will Newforma be obligated to provide support to outdated versions of
an Application or with respect to problems resulting from errors caused by the
infrastructure, network or other software or hardware with which the Service is
used.

2.10 Newforma® Project Center Specific Terms.  Notwithstanding anything to the
contrary contained in these Terms and Conditions, Customer agrees to the
following terms with respect to an Order for Newforma® Project Center:

(a)  If such Application is installed on the premises of Customer or a third
party as designated by Customer, then such Application may only be installed,
executed and used on one or more servers as purchased by Customer, but deployed
by Newforma or one of its authorized service business partners.

(b)  Such Application may be used by the maximum number of Authorized Users
equal to the lesser of (i) the total number of Customer’s employees (including
independent contractors providing services directly to Customer) as specified in
an Order Form or (ii) the total number of enterprise users specified in an Order
Form.

(c)  Subject to Newforma’s acceptance, Customer may install, execute and/or use
such Application on additional quantities of servers, and/or increase the
maximum number of Authorized Users at any time during the Subscription Term by
executing and delivering to Newforma an Order Form indicating such additional
quantities.  Newforma may accept such Order Form by issuing to Customer an
invoice in the amount of the applicable fees (plus any applicable tax).  Every
additional Newforma® Project Center or Newforma® InfoExchange server that is
added during the Subscription Term to an existing, or new, location of Customer,
a “Newforma Deployment of Subsequent Server” fee shall apply in an amount agreed
to by Customer and Newforma.

(d)  If such Application is installed on the premises of Customer or a third
party as designated by Customer, then Customer may make a reasonable number of
copies of such Application for archival and back-up purposes only, and only to
the extent as permitted by applicable law, provided that Customer includes on
each copy all copyright or other proprietary notices contained on such
Application.

(e)  If such Application is installed on the premises of Customer or a third
party as designated by Customer, then in no event will Newforma be obligated to
provide support to outdated versions of an Application or with respect to
problems resulting from (i) the combination, operation or use of such
Application with equipment, software or data not supplied, or expressly approved
in writing, by Newforma; (ii) a modification of such Application that is not
done, or expressly authorized in writing by, Newforma; or (iii) errors caused by
the infrastructure, network or other software or hardware with which such
Application is used.

(f)  Customer may not use, or modify, in any way any database management system
provided with such Application for any purpose other than for making queries to,
and generating reports from, the database and the records in such database that
are generated by such Application.

(g)  If such Application is installed on the premises of Customer or a third
party as designated by Customer, then, for the avoidance of doubt, Customer
acknowledges and agrees that: (i) Customer is responsible for conducting regular
back-ups of the Newforma MySQL data tables and database; (ii) Customer
modification(s) to the Newforma MySQL data tables and database are not supported
by Newforma; (iii) extreme care must be exercised with SQL queries or any other
tool capable of modifying the Newforma MySQL data tables and database and such
modification may result in unrecoverable data damage; (iv) any assistance
required by Newforma to address issues caused by Customer tampering or modifying
the Newforma MySQL data table or database will be charged back to the Customer
at Newforma’s then current hourly Consulting Services rates and full
repair/recovery of data under these circumstances is not guaranteed; and (v)
Customer must consult with Newforma in advance of undertaking any such
activities to help ensure that data integrity is protected.

(h)  Customer acknowledges and agrees that the specific system requirements and
specifications for such Application are described at www.newforma.com.  Such
requirements and specifications are hereby incorporated into these Terms and
Conditions by reference.  Customer is responsible for ordering and commissioning
any required dedicated hardware and/or virtual machines to meet the minimum
requirements and specifications published by Newforma prior to scheduling an
agreed upon deployment date with Newforma or Newforma’s authorized services
business partner, as the case may be.  Customer is also responsible for
providing any required operating systems and licenses, SSL certificate(s),
supporting application software and information technology infrastructure
necessary to meet such requirements and specifications.

(i)  Customer acknowledges and agrees that it is Customer’s responsibility to
review the specific system requirements and specifications for such Application
described at www.newforma.com prior to Customer submitting any Order Form for
additional quantities of servers and/or  Authorized Users or an Order Form to
renew the then-current Subscription Term.

(j)  If such Application is to be installed on the premises of Customer or a
third party as designated by Customer, then (i) Customer shall provide Newforma
with secure remote desktop or other access to each server on which such
Application is installed solely for the purpose of Newforma fulfilling its
obligations under the Agreement (e.g., providing support and Consulting
Services) in accordance with Customer’s reasonable security policies and
procedures, (ii) Customer shall allow license and application reporting to be
downloaded from each such server on a regularly scheduled basis and (iii)
Customer shall supply a SSL certificate for use on any server on which Newforma®
Info Exchange is installed.

(k)  (i)  Customer hereby acknowledges and agrees that by activating a “Newforma
to Newforma” connection for a specified project, Customer will be inviting
selected Newforma customers who are also users of Newforma® Project Center and
who are authorized members of Customer’s project team to accept Customer’s
“Newforma to Newforma” request and/or to also register their Newforma
server(s).  The process enables Customer and these selected Newforma customers
to remotely modify any synchronized folders and their contents that they choose
to share with each other for the specified project.  It also enables the
selected Newforma customers to transfer files and workflow actions, such as
RFI’s, Submittals, and Action Items, directly to Customer’s internal Newforma®
Project Center and project folder environment as new “pending incoming items”
for the specified project.

(ii)  Customer hereby further acknowledges the risks inherent in allowing third
party access to Customer’s shared data (including personal data), including,
without limitation, the risk that (A) such data is deleted, modified and/or
corrupted by such third parties; (B) files containing such data are contaminated
by viruses or other malware introduced by such third parties; (C) confidential
information of Customer incorporated in such data is made available to such
third parties; and (D) such data could be subsequently disclosed or otherwise
made available to other parties by such third parties under circumstances where
the confidentiality of such data is not protected.

(iii)  By activating a “Newforma to Newforma” connection for a project, Customer
hereby agrees that (A) the individual activating the connection is authorized by
Customer to do so; (B) Customer is willing to accept the risks of having such
connection; and (C) Customer has in place appropriate business relationships
and/or agreements with such third parties to allow for the sharing of such data
(including personal data) and that otherwise protect the confidentiality of
Customer’s data to the extent deemed necessary by Customer in its sole
discretion.

(iv)  Customer hereby agrees that Newforma takes no responsibility, and assumes
no liability, with respect to damage to, loss of, or use or misuse of, data
resulting from Customer’s decision to make its data available to third parties
via a “Newforma to Newforma” connection.

3. FEES, BILLING AND PAYMENT.

3.1 Fees.  Customer agrees to pay Newforma the fees for Services and/or
Consulting Services as set forth in an Order Form and any applicable statement
of work, as the case may be.  Fees and prices applicable for annual or other
periodic renewals of a Subscription Term shall be at Newforma’s then current
list price, unless otherwise agreed to in writing by Newforma in its sole
discretion.

3.2  Billing and Payment.  Unless otherwise provided in an Order Form or a
statement of work, as the case may be, Customer shall pay each invoice within
thirty (30) days after the date of such invoice.  Fees for Services and
Consulting Services shall be invoiced on the estimated date(s) set forth in an
Order Form or a statement of work, as the case may be, or as otherwise mutually
agreed by Newforma and Customer.  All amounts not paid when due will bear
interest at the lesser of twelve percent (12%) per annum or the maximum rate
permitted by law.  Fees shall be invoiced, and shall be payable, in the currency
set forth in the Order Form or statement of work, as the case may be, or as
otherwise permitted by Newforma in its sole discretion.  Customer shall provide
its accounts payable contact information in an Order Form or by such other means
as reasonably requested by Newforma and promptly provide Newforma with any
changes or updates to such information.

3.3 Subscription Term and Renewal

(a) Initial Subscription Term. The initial subscription term shall begin on the
effective date of your subscription and expire at the end of the period selected
during the subscription process (“Initial Subscription Term”).

(b) Renewal Subscription Term. Unless Customer gives Newforma written notice
that it does not intend to renew the subscription, this Agreement will
automatically renew for the shorter of the Initial Subscription Term or one year
(“Renewal Subscription Term”). Written notice of non-renewal must be sent no
more than ninety (90) days but no less than thirty (30) days in advance of the
end of the Subscription Term. The Renewal Subscription Term will be on the
current terms and conditions of this Agreement, and subject to the renewal
pricing provided for in your Order Form or, if not specified in the Order Form,
on then standard pricing.  In addition, on renewal, the current product
usage will apply to your contract, unless otherwise agreed to by you and
Newforma.

3.4  Taxes.  Fees for Services and Consulting Services do not include sales,
use, withholding, value added, excise or similar taxes unless expressly
indicated in an Order Form.  Any applicable tax will be added to such fees. 
Customer shall pay all such taxes relating to the Services and the Consulting
Services provided under the Agreement (other than taxes based upon Newforma’s
gross revenue or net income).  If any of such taxes are paid by Newforma, then
Customer will, upon request, reimburse Newforma for such taxes, together with
any interest charged on such taxes by the applicable taxing authority if not due
to Newforma’s delay.

4. LIMITED WARRANTY

4.1 Limited Warranty.  Newforma warrants solely to Customer (and not to any
individual Authorized User) that, during the Subscription Term, if applicable,
or such other time period of use as described or contemplated in the applicable
Order Form, the ordered Service will conform in all material respects to the
description of such Service set forth in its Documentation (the “Service Limited
Warranty”).  Without limiting the foregoing, Newforma does not warrant that (a)
any Service will meet Customer’s requirements; (b) any Service will operate
without interruption or be error free; or (c) any Content will be accurate or
reliable.  Furthermore, Newforma is not responsible for delays, delivery
failures, or any other loss or damage resulting from the transfer of data over
communications networks and facilities, including the internet. Customer
acknowledges and agrees that a Service may be subject to limitations, delays and
other problems inherent in the use of the internet, servers that are hosted by
third party providers and such related network and communications
infrastructure.

4.2 Exclusive Remedy for Breach of Warranty.  If the ordered Service does not
conform to the Service Limited Warranty, then Newforma shall, at its option and
expense, either: (a) use reasonable efforts to correct any such non-conformities
in such Service or provide Customer with a workaround; (b) correct any errors or
discrepancies in the Documentation; or (c) refund a pro-rata portion of the fee
paid by Customer for such Services based upon the remaining time in the
Subscription Term, if any.  If the use of such Service is for other than a
stated period in the applicable Order Form (e.g., for the duration of an
estimated project length), then Newforma will refund to customer a pro-rata
portion of the paid fees for such Service as equitably and reasonably determined
by Newforma.  Newforma shall have no liability for any claim based upon (i)
improper use of a Service or use of a Service not in accordance with
instructions provided by Newforma; (ii) any modification of a Service that is
not done by Newforma; or (iii) errors caused by the infrastructure, network,
communications facilities, including the internet, other software or hardware
used to access a Service. The foregoing states Customer’s sole remedy and the
exclusive obligation of Newforma with respect to claims of breach of the
Services Limited Warranty.

4.3  Consulting Services Limited Warranty.  (a) Newforma warrants solely to
Customer (and not to any individual Authorized User) that Consulting Services
will be performed with reasonable skill, care and diligence (the “Consulting
Services Limited Warranty”).  If Customer notifies Newforma in writing that a
Consulting Service is not completed in accordance with the Consulting Services
Limited Warranty within thirty (30) days after completion of such Consulting
Services or such longer period of time agreed to in writing by Newforma, then
Newforma will re-perform such Consulting Service to the extent necessary so that
such Consulting Service is performed in accordance with the Consulting Services
Limited Warranty.

(b) The foregoing states Customer’s sole remedy, and the exclusive obligations
of Newforma, with respect to claims of breach of the Consulting Services Limited
Warranty.

4.4 Disclaimer of Other Warranties. Newforma is not responsible for the
accuracy, completeness, appropriateness, or legality of the Content, files, user
posts, or any other information you may be able to access using a Service.
Ultimately it is your responsibility to check that your Content as displayed on
the Site and/or the Application is an accurate rendering of your Content as
originally uploaded.  EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, THERE ARE NO
WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, RELATING TO AN
APPLICATION, THE SITE OR A SERVICE OR ANY CONSULTING SERVICES. NEWFORMA
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION,
THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT.  NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING,
BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR
PERFORMANCE OF SERVICE, WHETHER MADE BY NEWFORMA EMPLOYEES OR OTHERWISE, WHICH
IS NOT CONTAINED IN THE AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY NEWFORMA
FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF NEWFORMA WHATSOEVER.
SPECIFICALLY, AND WITHOUT LIMITING THE FOREGOING, NEWFORMA DOES NOT WARRANT OR
REPRESENT THAT A SERVICE WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE,
UNINTERRUPTED OR ERROR-FREE, OR THAT NEWFORMA’S SERVERS, SITE OR APPLICATION ARE
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT NEWFORMA’S SECURITY
PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF, OR IMPROPER
ACCESS TO, PERSONAL INFORMATION OR CONTENT BY THIRD PARTIES.

5. LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH A PARTY’S INDEMNIFICATION
OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, REGARDLESS OF THE FORM OF ACTION
(WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), (a) IN NO EVENT
SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING,
BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE A SERVICE OR TO ACCESS
CONTENT, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF PROFITS, BUSINESS
INTERRUPTIONS, OR THE LIKE), ARISING OUT OF THIS AGREEMENT EVEN IF SUCH PARTY OR
ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE, AND (b) NEWFORMA’S TOTAL LIABILITY TO CUSTOMER FOR ACTUAL AND/OR DIRECT
DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT CUSTOMER PAID FOR
THE SERVICE GIVING RISE TO SUCH DAMAGES, IF ANY, FOR THE TWELVE (12) MONTH
PERIOD PRECEDING THE CLAIM FOR SUCH DAMAGES. REGARDLESS OF THE FORM OF ACTION
(WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), NEWFORMA’S TOTAL
LIABILITY TO CUSTOMER’S AUTHORIZED USERS FOR ACTUAL AND/OR DIRECT DAMAGES UNDER
THE AGREEMENT BETWEEN CUSTOMER AND NEWFORMA WILL BE LIMITED TO $1,000. THE
FOREGOING LIMITATIONS SHALL APPLY TO ALL SUCH CLAIMS IN THE AGGREGATE.  

6. INDEMNIFICATIONS.

6.1 By Newforma.  (a)  Newforma will defend at its expense any third party
action brought against Customer only to the extent that it is (i) as a result of
Newforma’s breach of the Agreement or (ii) based upon a claim that a Service
ordered by Customer, when properly used within the scope of the Agreement,
infringes a patent, copyright or trademark in the country(ies) where Customer’s
office locations are located and such Service is used by Customer, and Newforma
will pay any damages, costs and reasonable attorneys’ fees finally awarded, or
agreed to in settlement and in writing, which are attributable to such claim,
provided that (A) Customer promptly notifies Newforma in writing of the claim,
(B) Customer permits Newforma to assume sole control of the defense and all
related settlement negotiations provided that no settlement (I) without a
general release of claims for the benefit of Customer, and/or (II) including an
obligation of Customer to admit to any liability or make any payment, will be
made without the prior written consent of Customer, and (C) Customer provides
reasonable cooperation, information and assistance in connection with the claim.

(b)  Notwithstanding the foregoing, Newforma shall have no liability to Customer
with respect to claims of infringement based upon (i) the combination, use or
operation of any Service with equipment, software or data not supplied, or
approved in writing, by Newforma if such claim would have been avoided by use of
other equipment, software or data, (ii) any modification of any Service that is
not done, or expressly authorized in writing, by Newforma, (iii) the use of
other than the current version of a Service, if such version was made available
by Newforma for no additional fees with notice that such version was being
provided in order to avoid an alleged or potential infringement, (iv) compliance
by Newforma with Customer’s designs, specifications or instructions, or (v)
infringement of patents, copyrights, trade secrets and/or other intellectual
property rights of Customer or any of its affiliates (each, an “Excluded
Claim”).

(c)  Newforma’s obligations under this Section are conditioned upon Customer’s
agreement that if a Service, or the use or operation thereof, becomes, or in
Newforma’s opinion is likely to become, the subject of such a claim, then
Newforma may at its expense, either procure the right for Customer to continue
using such or, at Newforma’s option, replace or modify the same so that it
becomes non infringing provided that such replacement or modification does not
materially and adversely affect the functionality of the same.  If neither of
the foregoing alternatives is commercially reasonable in Newforma’s reasonable
judgment, then Newforma may terminate the Agreement with respect to such
infringing Service by providing written notice to Customer.  Upon receipt of
such notice, Customer will uninstall, and/or cease use, of such Service at which
point Newforma will refund to Customer a pro-rata portion of the prepaid fees
for such Service for the then-current Subscription Term, if any, based upon the
time remaining in the then-current Subscription Term.  If the use of such
Service is for other than a stated period in the applicable Order Form (e.g.,
for the duration of an estimated project length), then Newforma will refund to
customer a pro-rata portion of the an prepaid fees for such Service as equitably
and reasonably determined by Newforma.

(d)  The foregoing states the sole remedy, and the exclusive obligations of
Newforma, with respect to the infringement, or alleged infringement, of a third
party’s intellectual property rights.

6.2 By You.  (a)  You will defend at your expense any third party action brought
against Newforma to the extent that it is (i) as a result of your breach of the
Agreement or (ii) with respect to Customer only, based upon an Excluded Claim,
and you will pay any damages, costs and reasonable attorneys’ fees finally
awarded, or agreed to in settlement and in writing, which are attributable to
such claim, provided that (A) Newforma promptly notifies you in writing of such
claim, (B) Newforma permits you to assume sole control of the defense and all
related settlement negotiations provided that no settlement without (I) a
general release of claims for the benefit of Newforma or (II) including an
obligation of Newforma to admit to any liability or make any payment will be
made without the prior written consent of Newforma, and (C) Newforma provides
reasonable cooperation, information and assistance in connection with such
claim.

(b)  The foregoing states the sole remedy of Newforma, and the exclusive
obligations of you, with respect to the infringement, or alleged infringement,
of a third party’s intellectual property rights.

7. PRIVACY.

7.1 Privacy Policy. The Privacy Policy is expressly incorporated herein by
reference. Any information you provide to Newforma, or that is collected in
connection with your use and access of a Service is subject to the terms and
conditions of the Privacy Policy.  The Privacy Policy may be amended from time
to time in accordance with its terms.

7.2 Collection and Storage of Personal Data.  By using a Service, you agree and
acknowledge that any personal data collected by Newforma through your use of the
Site or an Application, or in connection with the provision of a Service, may be
transferred across national boundaries to our employees in the United States,
UK, Canada, Germany, France, Singapore and Australia for storage, backup or
process in the ordinary course of Newforma’s business and performing its
obligations under the Agreement.  The type of transferred information may
include the location and/or the universally unique identifier of any Devices you
use to access an Application and their respective telephone number(s), if any.
 Please see the Privacy Policy for details.

7.3 Communications from Newforma. Newforma may send to you marketing and/or
service-related emails regarding the functionality or delivery of a Service. 
Please see the Privacy Policy for details.

7.4 Tracking. Your use of a Service or portions thereof may be tracked by
Newforma in order to provide better Service and for other purposes as set forth
in the Privacy Policy.

7.5 Processing of Personal Data.  When Newforma processes any personal data on
Customer’s or an Authorized User’s behalf as a result of the Customer’s or an
Authorized User’s use of a Service, Customer and each Authorized User hereby
agree that Newforma is a data processor and the Customer is the data controller,
and in any such case: (a) Customer and each Authorized User acknowledge and
agree that the personal data may be transferred or stored outside the European
Economic Area (EEA) or the country where Customer and each Authorized User of
the Service are located in order to provide the Services and carry out
Newforma’s other obligations under the Agreement; (b) Customer, as the data
controller, shall ensure that it is entitled to transfer the relevant personal
data to Newforma so that Newforma may lawfully use, process and transfer the
personal data in accordance with the Agreement and the DPA, if applicable, on
such party’s behalf; (c) Customer and each Authorized User, as the case may be,
shall ensure that all relevant third parties have been informed of, and have
given their consent to, such use, processing, and transfer as required by all
applicable data protection and privacy legislation; and (d) Customer shall take
appropriate technical and organizational measures against unauthorized or
unlawful processing of the personal data or its accidental loss, destruction or
damage.  The DPA is expressly incorporated herein by reference.  To the extent
any provision of these terms and conditions conflict with the provisions of the
DPA, the DPA shall govern and control such conflict.

8. TERM AND TERMINATION.

 8.1 Term. Unless terminated earlier in accordance with its terms, the Agreement
with respect to a particular Service will remain in effect until the end of the
Subscription Term for such Service, if any, or such other time period as
described or contemplated in the applicable Order Form for such Service.

8.2 Termination by Newforma. This Agreement shall automatically terminate with
respect to a particular Service upon the expiration, without renewal, of the
Subscription Term for such Service, if any, or the expiration of such other time
period as described or contemplated in the applicable Order Form for such
Service.  You agree that Newforma, in its sole discretion and without notice or
liability to you or any third party, may terminate or suspend an Authorized
User’s account with respect to any or all Services if Newforma believes that an
Authorized User has violated, or acted inconsistently with, any term of the
Agreement.  Newforma may terminate the Agreement with respect to any or all
Services upon notice to Customer if Customer or any of its Authorized Users (a)
breaches any obligations set forth in Sections 2.4 through 2.8 or attempts to
assign this Agreement in violation of the provisions of Section 10.3, or (b)
breaches any other obligation under the Agreement and fails to cure such breach
within thirty (30) days after notice thereof.  Upon such termination, Newforma
may terminate the passwords of Customer’s Authorized Users and may remove, and
discard, any Content uploaded, posted or otherwise stored by you using the
Services that gave rise to such breach, if any.

8.3 Termination by You. An Authorized User may terminate such Authorized User’s
Newforma account, and/or Customer may terminate the Agreement, with respect to
any or all Services at any time by providing at least thirty (30) days’ advance
written notice to Newforma, provided, however, that, unless otherwise agreed to
in writing by Newforma, Customer shall not in any event be entitled to any
refund of any fees previously paid or be entitled to cancel any obligation to
pay any fees that would otherwise become due and payable under an Order Form
prior to, or after, such termination.

8.4 Effect of Termination. Upon termination of the Agreement with respect to a
particular Service, neither Customer, nor any of its Authorized Users, shall
make any further use of such Service.  Termination of the Agreement shall not
affect any obligations accrued prior thereto, including any payment obligations.
 Sections 1, 2.2, 2.3(b)-(e), 2.4, 2.5, 2.6, 2.10(k), 3, 4.2, 4.3(b), 4.4, 5, 6,
7, 8, 9 and 10 shall survive termination of the Agreement with respect to any or
all Services in accordance with their respective terms.

9. CONFIDENTIALITY.

9.1 “Confidential Information” shall mean all information regarding the
technology, products or business of Newforma or Customer (or of such party’s
customers or suppliers), whether written, oral or graphic, disclosed or made
available by one such party (the “disclosing party”) to the other such party
(the “receiving party”) pursuant to the Agreement, (a) which is designated as
confidential in writing by the disclosing party prior to, or at the time, any
such information or material is disclosed by the disclosing party to the other
party, or (b) which is orally or visually disclosed by a party, or is disclosed
in writing without an appropriate confidentiality designation, if the disclosing
party, within thirty (30) days after such disclosure, delivers to the other
party a written document describing the information or material and referencing
the place and date of such oral, visual or written disclosure and the names of
the persons to whom such disclosure was made and denoting the confidential
nature of the information, or (c) as to which it would be apparent to a
reasonable person, familiar with the disclosing party’s business, that such
information is of a confidential nature the maintenance of which is important to
the disclosing party.  For the avoidance of doubt, Newforma has no obligation of
confidentiality to Customer’s Authorized Users under the Agreement as between
Customer and Newforma.

9.2 Treatment of Confidential Information.  The receiving party shall not,
without the prior written consent of the disclosing party, disclose any
Confidential Information of the disclosing party to any person or entity other
than the receiving party’s employees or contractors that need to have access to
such information.  As a condition to any such consent, the disclosing may
require any such third party to enter into the disclosing party’s standard
non-disclosure and confidentiality agreement.  The receiving party shall not,
without the disclosing party’s prior written consent, disclose any of the
disclosing party’s Confidential Information to anyone other than the receiving
party’s employees or contractors that need to have access to such information
or, if the receiving party is Newforma, as otherwise described in the Privacy
Policy.  Each party shall use the Confidential Information of the other party
only in a manner consistent with the Agreement and shall otherwise protect such
Confidential Information from disclosure to others with the same degree of care
accorded to its own proprietary information (but in no event less than a
reasonable degree of care). 

9.3 Release from Restrictions.  The provisions of Section 9.2 shall not apply to
any Confidential Information which: (a) was known by the receiving party prior
to its date of disclosure to the receiving party without an obligation of
confidentiality, as evidenced by the prior written records of the receiving
party; or (b) is disclosed to the receiving party without an obligation of
confidentiality by sources other than the disclosing party rightfully in
possession of the Confidential Information and having the right to disclose the
Confidential Information; or (c) becomes published or generally known to the
public through no breach of the Agreement on the part of the receiving party or
its affiliate; or (d) is independently developed by the receiving party without
reliance upon, or reference to, any Confidential Information of the disclosing
party; or (e) is required to be disclosed by the receiving party to comply with
applicable laws, to defend or prosecute litigation or to comply with
governmental regulations, provided that, unless prohibited by law, the receiving
party provides to the other party prior written notice of such disclosure and a
reasonable opportunity to contest such disclosure, and thereafter reasonably
cooperates with the disclosing party to take lawful actions to avoid and/or
minimize the degree of such disclosure.

9.4 Return of Confidential Information.  Upon termination of the Agreement or at
any other time upon a disclosing party’s request, the receiving party shall use
commercially reasonable efforts to immediately destroy all materials in such
receiving party’s possession reflecting or containing any Confidential
Information of the disclosing party.

9.5 Survival of Obligations.  Notwithstanding any termination of the Agreement
with respect to all Services, the obligations of the receiving party under this
Section with respect to Confidential Information of the disclosing party shall
survive for a period of two (2) years from the date of such termination.

10. MISCELLANEOUS.

10.1 Compliance with Laws.  You agree to comply with all applicable laws and
regulations relating to your use of a Service, including, without limitation,
those relating to export and import, privacy and personal data protection. 
Newforma agrees to comply with all applicable laws and regulations relating to
providing you with use of a Service, including those related to export and
import, privacy and personal data protection.

10.2 Injunctive Relief. All parties acknowledge that in the event of a breach,
or threatened breach, of any of the provisions of Sections 2.4 through 2.6, or
Section 9 of the Agreement, the aggrieved party may suffer irreparable harm and
will therefore be entitled to injunctive relief to enforce those provisions
without being required to prove damages or post a bond in any court of competent
jurisdiction notwithstanding the provisions of Section 10.4 below.

10.3 Assignments and Acquisitions.

(a)  The Agreement is binding upon and inures to the benefit of the parties and
their respective successors and permitted assigns.  You may not without prior
written notice to, and consent of, Newforma assign or otherwise transfer the
Agreement or any of your rights or obligations hereunder, including as a result
of: (i) the sale, whether directly, indirectly, beneficially or of record, by
any individual, entity or group of 50% or more of the voting equity of the
Customer, whether by merger, consolidation, sale or other transfer of equity
(other than a merger or consolidation where the owners prior to such transaction
are the holders of a majority of the voting equity of Customer that survives
such merger or consolidation), or (ii) a sale of all or substantially all of the
assets of Customer (any such transaction is referred to as an “Acquisition”). 
Unless otherwise agreed in writing in advance by Newforma, any payment
obligations related to this Agreement remain, including any payment obligations
not yet invoiced or due to be paid, shall be immediately due at the time just
prior to any such Acquisition taking effect.

(b)  Unless otherwise agreed in writing by Newforma, (i) in the event Customer
acquires an existing Newforma customer (the “Target”) using a Service currently
licensed to Customer, (A) Customer agrees that the license of such Service by
Target and the Target’s Authorized Users shall be additive, and not included in,
Customer’s then-current subscription of such Service, and (B) Customer further
agrees that upon completion of the Acquisition of the Target, Customer shall
promptly notify Newforma in writing and shall agree to extend the Target’s
Subscription Term (and applicable license fees) to the end of the Customer’s
then-current Subscription Term if such end date is later than the Target’s end
date for its Subscription Term, and (ii) in the event Customer acquires a Target
not using a Service, Customer agrees the potential users of a Service
attributable to the Target shall not be considered Customer’s Authorized Users
of any Service licensed by Customer without the prior written consent of
Newforma.

10.4 Governing Law and Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, (a) if the Customer’s address as set forth in the
Order or Order Form is located in Europe (other than Germany), the Middle East
or Africa, the substantive laws of England and Wales without regard to its
conflict of laws principles and such Customer and its Authorized Users
irrevocably agree that the courts of England and Wales shall have exclusive
jurisdiction to settle any dispute or claim arising out of, or in connection
with, the Agreement or its subject matter or formation, (b) if the Customer’s
address as set forth in the Order or Order Form is located in Germany, the
substantive laws of Germany without regard to its conflict of laws principles
and such Customer and its Authorized Users irrevocably agree that the courts of
Frankfurt shall have exclusive jurisdiction to settle any dispute or claim
arising out of, or in connection with, the Agreement or its subject matter or
formation, and (c) if the Customer’s address as set forth in the Order or Order
Form is not located in Europe, the Middle East or Africa, then the substantive
laws of the State of New Hampshire (U.S.A.) without regard to its conflict of
laws principles and such Customer and its Authorized Users irrevocably agree
that the courts of the State of New Hampshire (U.S.A.) shall have exclusive
jurisdiction to settle any dispute or claim arising out of, or in connection
with, the Agreement or its subject matter or formation.  The parties expressly
exclude the provisions of the United Nations Convention on Contracts for the
International Sale of Goods and the Uniform Computer Information Transactions
Act.  No action arising out of, or related to, the Agreement may be brought by
Newforma, Customer or any of its Authorized Users more than one (1) year after
the cause of action was, or reasonably should have been, discovered or, in the
case of an action for nonpayment, more than two (2) years after the date the
last payment was due; however, nothing in the Agreement shall limit the ability
to bring an action in connection with fraud or intentional or willful
misconduct.

10.5 Relationship of the Parties. Nothing in this Agreement shall be construed
as making the parties partners or as creating the relationships of employer and
employee, master and servant, or principal and agent between them, for any
purpose whatsoever. No party shall make any contracts, warranties or
representations or assume or create any other obligations, express or implied,
in another party’s name or on its behalf.

10.6 Notices. Notices under the Agreement shall be in writing and shall be
delivered by hand, sent by facsimile, sent by email, mailed via certified mail,
or delivered by commercial courier service.  Notices shall be deemed effective
when received or upon attempted delivery, in the event that delivery is refused.

10.7 Force Majeure. In no event shall Newforma be liable for any delay or
failure to perform any of its obligations if such delay or failure is due to
causes beyond its reasonable control, which causes shall include, without
limitation, the continued unavailability of storage services provided by
third-party service providers engaged to perform such services on behalf
Newforma.

10.8 Entire Agreement.

(a) These Terms and Conditions are incorporated by reference into every Order
and Order Form. The Agreement shall apply to all Services and any Consulting
Services ordered or used by Customer.  The Agreement (together, for Customer,
with any Order Form or any statement of work) constitutes the complete agreement
between the parties concerning the subject matter of the Agreement, and, unless
otherwise agreed in writing by Newforma, supersedes all prior or contemporaneous
agreements or representations, written or oral, concerning the subject matter of
the Agreement and the use of any Service.

(b) Notwithstanding the foregoing, any separate existing confidentiality
agreement entered into between the parties shall remain in full force and effect
in accordance with its terms, and to the extent that any of the provisions of
any such agreement conflict with the provisions of the Agreement, the provisions
of such existing agreement shall prevail and govern and control such conflict.

(c)  To the extent that any of the provisions of an Order Form or statement of
work and these Terms and Conditions conflict, the provision of such Order Form
or statement of work shall prevail and govern and control such conflict.

(d)  You agree that Newforma shall license, and provide, a Service only in
accordance with the terms and conditions of the Agreement.  The terms and
conditions set forth in any purchase order or other document submitted by
Customer or such Customer’s Authorized User shall be null and void and of no
force or effect.

(e)  If Customer is located in Quebec, Canada, then Newforma and Customer have
requested that the Agreement and all related documents be drawn up in English
only (i.e., les parties aux présentes ont exigé que le présent contrat et tous
les documents qui s’y rattachent soient rédigés en anglais seulement).

(f)  In the event of any inconsistency between the English version of any
portion of the Agreement and any translation of such portion of the Agreement
into another language, the translated version shall prevail and be binding upon
Newforma and Customer.

10.9 Connection to the Internet. A Service may cause your Device to
automatically connect to the Internet. Your use of the Service may entail
third-party costs (such as cellular phone and data connection charges or data
plan costs).  Newforma disclaims any and all liability for such charges and
costs.

10.10 Availability. Newforma tries to ensure that a Service is available 24
hours a day. However, the limitation of liability and disclaimer above apply
equally to the availability of a Service.  Newforma is not liable if for any
reason a Service is unavailable at any time and for any period and for any
reason. Notwithstanding any other provision of the Agreement, Newforma may
change or add to, a Service, or any portion thereof, at any time with or without
notice to you. If any future changes are unacceptable to you, you should
discontinue using such changed Service.

10.11 Severability.  If any provision of the Agreement is held to be invalid or
unenforceable, then such provision shall be construed, as nearly as possible, to
reflect the intentions of the parties, and all other provisions will remain in
full force and effect.

10.12  Notice to U.S. Government End Users.  Notice to U.S. Government End
Users.  An Application and the Documentation are “Commercial Items”, as that
term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software”
and “Commercial Computer Software Documentation”, as such terms are used in 48
C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable.  Consistent with 48 C.F.R.
12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial
Computer Software and Commercial Computer Software Documentation are being
licensed to U.S. Government end users and U.S. Government contractors (a) only
as Commercial Items and (b) with only those rights as are granted to all other
end users pursuant to these Terms and Conditions.

10.13 Amendment.  Newforma shall have the right to amend these Terms and
Conditions at any time for customers and users generally, without any notice to
you, by posting an updated version of these Terms and Conditions on the Site or
otherwise making them available through a Service.  For the avoidance of doubt,
changes will only be effective and apply to Customer and its Authorized Users
for a particular Service currently being used by such Customer upon the renewal
of such Service or upon purchasing an additional Service pursuant to an Order
Form referencing these then-current Terms and Conditions.  Executing and
submitting such Order Form and continued use of a Service, whether through any
Device or by visiting the Site, after placing such Order shall constitute your
consent to such changes.  The Terms and Conditions in effect at any given time
will be available to Customer and its Authorized Users.  Newforma recommends
that you regularly check the Site, or review these Terms and Conditions through
a Service to ensure your familiarity with the terms and conditions governing
your order of a Service and to inform yourself of any such changes.

Prior Versions of Terms and Conditions can be found here:

https://www.newforma.com/terms-and-conditions/terms-conditions-2019-03-03/

https://www.newforma.com/terms-and-conditions/terms-conditions-2018-05-25/

https://www.newforma.com/terms-and-conditions/terms-conditions-2016-09-01/




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