GENERAL TERMS AND CONDITIONS FOR THE USE OF THE COBUILDER PLATFORM

1. Definitions

Affiliate: With respect to a legal entity – any other person who controls or is under common control with this legal entity, where “control” means the ability to determine the vote on the management bodies of such person in result of share/capital ownership, authorization, contractual instrument or otherwise.

Agreement: These General T&C, as published at any time on the Company’s webpage, its appendices (i.e. the Data Processing Agreement – Appendix 1, and the Service Level Agreement – Appendix 2), the Frontpage and the Customer Registration page (in the online registration module) and the applicable Special T&C (as defined below).

Authorized End Users: Customer Employees who use the Cobuilder Platform on behalf of the Customer and have been supplied with user identifications and passwords by Cobuilder.

Cobuilder: Cobuilder AS with registered office address, Strandveien 12, N-1366 Lysaker Norway. Cobuilder is the developer and supplier of the Cobuilder Platform.

Cobuilder API: The cumulative of all application programming interfaces that are made available to the Customer by Cobuilder on the terms and conditions as stated in this Agreement as a part of the Cobuilder Platform. The Cobuilder API consists of technology, which may include object code, software libraries, software tools, sample source code, published specifications, and documentation including any additions, updates or modifications thereto. The Cobuilder API provides access to the Cobuilder Content and document files stored on Cobuilder’s servers as well as metadata for these.

Cobuilder Information: Any data (excluding Customer Data), Cobuilder Output, know-how, processes, source code, algorithms, databases, software, computer programs, plugins, documents, designs, flowcharts, schematics, techniques, methods, procedures, improvements, hardware, products, devices, discoveries, inventions or technological solutions at any given moment in time – whatever its form or nature (tangible or intangible) which are proprietary to Cobuilder or where Cobuilder holds intellectual property rights (IPR). The Cobuilder Information includes the Cobuilder Platform (incl. the Cobuilder API), Cobuilder Output (excluding Customer Data to the extent incorporated therein) and all software solutions that Cobuilder owns at any time, updates thereto and all new software solutions and/or functionalities as may be developed by Cobuilder and introduced to the Cobuilder Platform from time to time, whether or not reduced to practice. For purposes hereof, any third-party licensed products employed in the Cobuilder Platform by Cobuilder shall, except to the extent they represent Customer Data, be deemed Cobuilder Information. Changes to the Cobuilder Information made in the performance of the Agreement shall inure to the benefit of Cobuilder and be deemed Cobuilder Information (excluding any Customer Data to the extent incorporated therein).

Cobuilder Output: Any product or data output developed by Cobuilder, acting on Customer’s authorization, on the basis of Customer Data, Content Providers Content and/or publicly available sources and made available by Cobuilder on the Cobuilder Platform. Cobuilder Output inter alia includes databases, datasets, analyses, metrics, algorithms, calculations, classifications, data structure and other similar products.

Cobuilder Platform: The standard products developed by Cobuilder and delivered as software-as-a-service to the customers and end users, namely be Cobuilder Collaborate, Cobuilder Supply (prev. goBIM), Cobuilder Supply SDS, Cobuilder Connect, Cobuilder Require (prev. Link), Supply API, Cobuilder App and DefineTM .

Cobuilder Public Page: Any part of the Cobuilder Platform that is publicly accessible without registration.

Commercial Use: Any presentation, derivation, or application of Cobuilder Information (cumulatively referred to as “application”) in a derivative product or resource with the intention to generate revenue by selling this to any third party.  “Revenue” for the purposes of this definition is not limited to direct financial gains but can also include indirect or in-kind gains that may accrue from the application, for example: providing a service or a product without fee that helps to market or position an organization, a legal entity or an individual.

Cobuilder Content: Any and all of (i) Customer Data and (ii) Cobuilder Output made available through the Cobuilder Platform.

Content Providers Content or CPC: Data from leading organizations, content owners and industry partners (details on these third parties is available at https://cobuilder.com/en/accreditations-and-partnerships/ ) which Cobuilder employs in Cobuilder Output on the basis of legitimate rights to use.

Customer: The legal entity that signs this Agreement or the company identified on the Frontpage or in the Customer page in the online registration module.

Customer Data: The Customer’s own business, products manufactured or used by the Customer, projects and project identification, sub-contractors and associated data (e.g the values of properties) uploaded or otherwise added to the Cobuilder Platform by the Customer/an Authorized End User, or by Cobuilder upon authorization by the Customer, which is either proprietary to the Customer, including inter alia subject to Customer’s IPRs, or is legitimately used by the Customer for the purposes of this Agreement on the basis of lawful authorizations and/or valid agreements with third parties.

Customer Employees: Customer’s hired personnel, its management, owners and third parties – Customer’s vendors (e.g. consultants) to whom the Customer has provided its own access details for entry into the Cobuilder Platform as if it were the Customer itself.

Data dictionary: A terminology database in the Cobuilder Platform that enables the Customer to create relationships between concept types making up ontologies defining various functions of buildings, infrastructure, products, systems, and rooms within the construction industry.

Data Protection Act: A law, regulation, ordinance or any other legal instrument issued by a public authority on the protection of personal data.

Data Template (DT): A common data structure describing the characteristics (called “properties’) of a construction object, and its physical qualities, according to a credible source of information – be it a technical standard or a legal regulation.

Force Majeure: Unforeseeable and unpredictable events beyond the control of the Parties that jeopardise or suspend the performance of either or both Parties under the Agreement; Force Majeure includes but is not limited to acts of fire, wars, lightning, floods, strikes, lockouts, sabotage, civil strife, demonstrations, government lock-downs, pandemic, terrorist acts and state authority rules or regulations which under the applicable law will be qualified as Force Majeure.

Frontpage: The written document or the Customer registration page in the online registration module explaining who the Customer is, the contact persons of the Customer and Cobuilder, the Services and products ordered from Cobuilder and the effective date of this Agreement.

GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

Internal Use: Use by the Customer’s personnel, management and assignees within Customer’s organization as part of the execution of their work tasks for the Customer.

License Fee: The prepaid fixed subscription fee to be paid by the Customer to Cobuilder for the use of the Cobuilder Platform.

Party/Parties: Cobuilder or/and the Customer.

Services: Other services than those covered by the License Fee which the Parties have agreed and specified in a separate bilateral agreement.

Special T&C: Special terms and conditions that apply to a specific product on the Cobuilder Platform or to agreed upon Services.

2. In general

2.1 This Agreement regulates the relations between the Parties concerning the use of the Cobuilder Platform by the Customer and the delivery of agreed-upon Services by Cobuilder.

Should the terms and condition included in an appendix to the General T&C, or in Special T&C differ, they shall prevail over the General T&C.

If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.

2.2 The Parties’ contact persons listed on the Frontpage or in the Customer registration page in the online registration module shall communicate through writing concerning the Agreement. The Parties accept email correspondence as a written means of communication and as the preferable method of communication.

2.3 Nothing outlined in this Agreement is intended, or shall be deemed, to establish any partnership or joint venture between the Parties, nor constitute either Party as the agent of the other Party, or to authorize either Party to make or enter into any commitments on behalf of the other Party.

2.4 The Customer ensures and warrants to Cobuilder that Authorized End Users will adhere to and comply with this Agreement. Any claims for violations of this Agreement by Authorized End Users shall be addressed by Cobuilder to the Customer.

2.5 The Customer may not assign this Agreement, or any interest or rights granted hereunder to any third party without the prior written consent of Cobuilder which shall not be unreasonably withheld or delayed. A change of control or reorganization of the Customer such as a merger, consolidation, division, spin-off or a sale of Customer’s business enterprise shall be deemed to be an assignment under this Agreement. The Customer shall provide to Cobuilder at least one month prior notice regarding such events before any of them becomes effective and Cobuilder is entitled, based on its sole unrestricted judgement to terminate the Agreement within this period with 10 days written notice.

3. Term and termination

3A. Use of Cobuilder Platform

3.1. This Agreement is effective from the date of signing as stated on the Frontpage or from the date the Customer has registered on the Cobuilder Platform. The Agreement lasts for one year therefrom.

3.2. This Agreement shall be automatically renewed for successive one-year periods unless terminated by either Party by written notice delivered at least 3 months before the beginning of the next such period.

3.3. In case of termination, the Agreement shall be deemed terminated as of the last day of the one year subscription.

3.4. If one of the Parties is guilty of substantial noncompliance with the Agreement, which is not remedied within 30 days after being urged thereto by a written notice from the other Party, the other Party may terminate the Agreement with immediate effect. In this case:

(i) If the Agreement is terminated due to a substantial breach by Cobuilder, the Customer shall be entitled to a pro-rata refund of prepaid License Fees without prejudice to Customer’s right to claim higher proven direct damages; and

(ii) If the Agreement is terminated due to a substantial breach by the Customer no refund of prepaid License Fee is due by Cobuilder.

3B. Use of Services

The conditions for the provision of Services shall be agreed in the separate bilateral agreement between Cobuilder and the Customer.

4. Prices

4.1 The License Fees for the use of the Cobuilder Platform are specified on the Frontpage, in the online service for Customer registration and on the Cobuilder webpage. The price of Services shall be agreed in the separate bilateral agreement between Cobuilder and the Customer.

4.2 All prices are due for payment within 14 days of the invoice date. Delayed payment shall cause interest to accrue according to the applicable law.

4.3 If changes are adopted in public taxes and fees that affect the Agreement after the conclusion of the Agreement, this will be charged to the Customer. Cobuilder can, without prior notice, carry out annual price adjustments with the higher between the change in the consumer price index (CPI) published by Statistics Norway for the last calendar year and 5%.

4.4 Without prejudice to Section 4.3, other price changes must be notified in writing, and price changes can only be implemented one month after the notification has been sent. For the avoidance of doubt, any price changes to customers who are existing as of the date such changes are applied for their next renewal period of the Agreement.

4.5 Should the use of the Cobuilder Platform by a customer require the payment of an additional fee for the access to Content Providers Content, this additional fee shall be paid by the Customer additionally. Cobuilder shall inform the Customer in such cases.

5. Intellectual property rights and data (IPR)

5.1 The Cobuilder Platform operates by creating databases, datasets, analyses, metrics by Cobuilder based on the Customer Data or data collected by Cobuilder from public sources. This Agreement does not include a transfer of either Party’s IPR to the other Party, unless otherwise expressly agreed upon in writing. This Agreement only includes the grant of non-exclusive temporary rights for the use of the Cobuilder Platform to the Customer.

5.2 The Customer has and retains the copyright and/or other intellectual and neighbouring rights (if any) to the Customer Data and warrants and represents to Cobuilder that in all cases it is entitled to use it as contemplated by this Agreement.

5.3 By entering into this Agreement the Customer grants Cobuilder a perpetual, non-exclusive, worldwide royalty-free right to use (including Commercial Use), analyse, reproduce, amalgamate and display (as an aggregate or individual data) the Customer Data at any time and provide it to other customers and Authorized End Users or use it for the development of Cobuilder Output, unless explicitly provided otherwise in the Agreement.

5.4 The Customer commits to, and warrants to Cobuilder that it shall use the Cobuilder Platform and the Cobuilder Output only for Internal Use; should it wish to use them for Commercial Use it shall sign a separate agreement with Cobuilder, in addition to this Agreement.

5.5 The Customer shall have no right to distribute, license or otherwise transfer any Cobuilder Information to any third party or incorporate the Cobuilder API in any software, product, or technology or engage in the Commercial Use of Cobuilder Information in any form or manner without the consent of Cobuilder. Any planned Commercial Use by the Customer of any of the foregoing will be covered by a separate agreement between the Customer and Cobuilder.

5.6 Cobuilder has and retains ownership, copyright and/or other intellectual and neighbouring rights to the Cobuilder Information. Cobuilder retains the exclusive right to make changes to the source code and the exclusive right to further assignment of such results. Cobuilder holds the ownership rights and all intellectual property rights to the technology, including the databases and any associated programs and services that Cobuilder offers to the Customer through this Agreement.

5.7 The Customer warrants and represents to Cobuilder that, unless specified otherwise in this Agreement (including applicable Special T&C), it shall not upload or authorize Cobuilder to upload in the Cobuilder’s Platform any data that is confidential, or includes personal data, or whose use by Cobuilder in accordance with this Agreement may result in violation of any applicable law.

Should the Customer discover or judge that there are use-related restrictions on some Customer Data, the Customer shall promptly notify Cobuilder in writing, identifying the Customer Data in question, and Cobuilder shall remove such Customer Data from the Cobuilder Platform within 24 hours.

5.8 The Customer warrants and represents to Cobuilder that it holds the necessary rights (including IPRs as applicable), licenses, and consents to grant Cobuilder the rights to Customer Data pursuant to this Agreement. The Customer agrees to hold harmless and indemnify Cobuilder against any third-party claims as well as any governmental fines and penalties related to Cobuilder’s activities pertaining to Customer Data in accordance with the Agreement. For the avoidance of doubt, the Customer shall acquire such claims with all pertaining risks, expenses and administration to it and shall keep Cobuilder safe and intact from any losses directly or indirectly associated with it.5.9 A Party shall inform the other Party without undue delay if it becomes aware of any infringement of trademark, patent, design, third-party content or copyright concerning the Cobuilder Platform or Services.

5.10 The Customer acknowledges and agrees that Cobuilder grants to third parties (i.e. who are not Cobuilder customers) a non-transferable, non-exclusive right to read certain Cobuilder Content from the Cobuilder Public Page as a free license solely and exclusively for Internal Use. For the avoidance of doubt, this license does not permit the Commercial Use of the publicly accessible Cobuilder Content.

5.11 Customers may be invited by Cobuilder to participate in workgroups, steering committees and focus groups dedicated to the further enhancement of the Cobuilder Platform. Customers who accept the invitation are hereby defined as “Workgroup Members”; if the Customer nominates Workgroup Members, it explicitly warrants and represents that any and all results from their activity becomes part of the Cobuilder Information and the Customer nominated Workgroup Members do not acquire any proprietary or IPRs therein; the Customer shall procure that its nominated Workgroup Members adhere to this commitment.

6. The Customer’s obligations

6.1 The Customer can allow Customer Employees to access and use the Cobuilder Platform on the basis of Customer’s authorization and user identifications and passwords provided by Cobuilder. The Customer acknowledges that only Authorized End Users who perform functions under the same company number (business registration number) as the Customer or on behalf of the customer shall be covered by the Customer’s subscription.

6.2 The Customer is solely responsible for acquiring, financing, and maintaining the computer equipment, third-party software and internet access, etc. necessary for using the Cobuilder Platform. The Customer is responsible for procuring such third-party software and the necessary licenses for the use thereof. Cobuilder makes no representation or warranty concerning third-party software being used by the Customer and shall have no obligation or liability concerning third-party software employed in the use of the Cobuilder Platform by the Customer. The Customer is responsible for the creation, maintenance, and use of data from the Cobuilder Platform for the Customer’s needs. The Customer is solely responsible for providing the necessary training as regards the Cobuilder Platform to Customer Employees. The Customer is responsible for the lawful use of the Cobuilder Platform and related Services (if any) by Customer Employees in the Customer’s own business. Training can be organized by Cobuilder and billed as an additional service as per the hourly rate specified in the online service or on the Cobuilder webpages. The Customer acknowledges that the Cobuilder Platform may be subject to export license restrictions imposed by various countries. The Customer shall fully comply with all applicable export license restrictions and requirements as well as with all laws and regulations relating to the importation of the Cobuilder Platform in any foreign jurisdiction in which the Cobuilder Platform is used.

6.3 The Customer is solely responsible for ensuring that all Customer Data is correct (except for mistakes made by Cobuilder while entering the data); including that such data or data entry does not constitute an infringement of any third-party IPRs or other rights. This obligation applies to any use of the Cobuilder Platform, including the Customer’s reception or distribution of data or information belonging to any third party as well as information that is imported by the Customer. If the Customer has a contractual obligation with third parties that restricts the Customer’s right to use such data, the Customer is responsible for complying with such agreements. 6.4 The Customer shall adhere to the service levels, maintenance schedules, and request prioritization as defined in the Service Level Agreement (“SLA”) – Appendix 2 to this Agreement.

6.4 The Customer is responsible to manage the use of third-party data or information (excluding such that forms part of the Cobuilder Information per this Agreement), including Content Providers Content, which the Customer access through the Cobuilder Platform. For the avoidance of doubt, this obligations includes but is not limited to compliance with the licensing terms, attribution requirements, and any other specified usage restrictions applicable to such data or information.

7. Marketing right

The Customer acknowledges that Cobuilder is entitled to market the Agreement and inform publicly that the Customer has entered into an agreement with Cobuilder, unless otherwise specifically agreed.

8. Cobuilder’s obligations

8.1 Cobuilder is responsible for the set-up, management, operation, and maintenance of the Cobuilder Platform and the input of data on behalf of the Customer upon authorization.

8.2 As a supplier of the Cobuilder Platform, Cobuilder commits to exercise its business and design its applications in such a way that Cobuilder does not violate internationally recognized principles and guidelines related to privacy (e.g. the GDPR), human and labour rights, the environment, and corruption.

8.3 If the Customer receives a third-party claim that the Customer’s use of the Cobuilder Platform and/or other Cobuilder Information under the terms and conditions of this Agreement violates such third party’s IPRs, the Customer shall notify Cobuilder about the claim in writing and let Cobuilder handle such claim directly. Cobuilder shall hold the Customer harmless from and against any direct loss associated with the claim.

8.4 Cobuilder is entitled to remove information or data if its quality does not correspond to current industry standards and market requirements at its sole unrestricted judgement.

9. Liability

9.1 Cobuilder is, as the operator of the Cobuilder Platform, not responsible for the misuse of data or products, nor for any damage (direct or indirect) arising from inaccurate, incomplete, outdated or misleading data or information. Cobuilder is not responsible for events, loss, or damage caused by the Cobuilder Platform being unavailable or misused. Cobuilder will not provide any support for the Cobuilder Platform, including support services on e-mail or phone, or updates, upgrades, bug fixes, or modifications to the Cobuilder Platform under this Agreement unless as agreed upon as additional services. The Cobuilder Platform is offered and delivered as it is (“as is”) with no warranty regarding the functionality, support, or availability, with exception of what follows from mandatory provisions of applicable legislation. To the extent permitted by applicable law, Cobuilder does not accept any direct or indirect responsibility or liability for the quality or functionality of the Cobuilder Platform, for the loss of any data, or any monetary damages directly or indirectly derived from the use of the Cobuilder Platform. The Customer is solely responsible for making the necessary back-ups to avoid loss and/or corruption of the Customer Data. In case of loss or corruption of the Customer Data due to the mere functionalities of the Cobuilder Platform, Cobuilder is only obliged to provide the Customer with the most recent available back-up, if any. Under no circumstances shall Cobuilder be obliged to input or reconstruct any lost or corrupted Customer Data.

9.2 If the implementation of the Agreement is wholly or partly prevented or materially impeded by Force Majeure, the Parties’ obligations are suspended to the extent relevant in the situation, and for as long as the Force Majeure lasts. Nonetheless, either Party may terminate the Agreement with one month’s notice if the occurrence of Force Majeure makes it particularly burdensome for the latter to maintain the Agreement.

9.3 The Parties’ liability to each other is limited to direct damages. Cobuilder’s liability arising out of or related to the Agreement shall not exceed the lower of (i) 100 000 NOK and (ii) the payments received from the Customer for the last 6 months, save for cases of gross negligence or wilful misconduct. The Parties are under no circumstances responsible for the other Party’s consequential or indirect losses, including, but not limited to operating losses, loss of use, transaction losses, losses incurred by third parties, loss of data, or losses because of an agreement with a third party being annulled or amended. The limitation of liability as per this Section 9.3 does not apply if a Party, pursuant to this Agreement is responsible for: i) indemnification to third parties; ii) indemnification for sustained personal injury, including death; iii) damage to real or movable property; and iv) compensation amounts which under the applicable legislation cannot be limited.

10. Confidential information

10.1 Save as required for the purposes of the implementation of the Agreement, each Party undertakes to treat all “Confidential Information” (meaning any information, knowledge or material, whether in writing, electronically or orally, of a confidential or secret nature of or concerning either Party, its affiliates, or their activities) relating to the other Party as strictly confidential and not to divulge it to any third party for any purpose whatsoever, whether during or after the termination of this Agreement. For the avoidance of doubt, neither Party shall make use of Confidential Information or any part thereof for any purpose other than the Agreement without the other Party’s prior written consent.

This undertaking shall not apply to: (i) Customer Data, (ii) information which at the time of disclosure is published or otherwise generally available to the public; (iii) information which is published or becomes generally available to the public, other than through any act or omission on the part of the recipient; (iv) information which was in the recipient’s possession at the time of disclosure and which was not acquired directly or indirectly from the other Party; (v) information rightfully acquired by the recipient from a third party who did not obtain it under a pledge of secrecy to the other Party or any third party; or (v) information which has been developed by the recipient independently of the Confidential Information received from the other Party.

10.2 All Confidential Information supplied to or acquired by either Party shall on termination of this Agreement be destroyed.

10.3 The Parties may disclose Confidential Information only to its employees or employees of its Affiliates on a need-to-know basis in order to carry out the rights and obligations under the Agreement, provided that such persons are bound by obligations of confidentiality and non-use to the disclosing Party which are equal to the terms of this Agreement. The disclosing Party shall ensure that such persons are fully aware of its obligations per this Agreement and shall be responsible for any breach of these provisions by its employees or employees of its Affiliates.

11. Personal data and GDPR

11.1 If, and to the extent, Cobuilder is provided access to any personal data and/or must process any personal data when performing its obligations under the Agreement, the Parties record their intention that the Customer shall act as “data controller” and Cobuilder shall act as “data processor” as these terms are defined in the GDPR and the relevant Data Protection Act. To the extent Cobuilder is a data processor on behalf of the Customer, the Data Processing Agreement (Appendix 1 to this Agreement) will be applicable and will regulate Cobuilder’s rights and obligations concerning such processing of personal data.

11.2 The Customer acknowledges and agrees that personal data may be transferred or stored in any country of the European Union or European Economic Area in compliance with the GDPR and the applicable Data Protection Act.

11.3 If, notwithstanding Section 11.1 the Customer enters personal data in Cobuilder Platform, the Customer is responsible for obtaining a legal basis for processing the information so that the personal data can be used on the Cobuilder Platform as per its functionalities. For the avoidance of doubt and unless Specific T&C provide otherwise, Cobuilder upon Customer’s authorization is not allowed to enter sensitive personal data in the Cobuilder Platform.

11.4 For business contact information which is used to manage the contractual relationship between Cobuilder and the Customer and which includes personal data (e.g. name/e-mail/tel. number of a representative/contact person) both Cobuilder and the Customer shall each take the appropriate technical and organizational measures that are required to protect the personal data against accidental or unauthorized destruction, accidental loss, as well as against any modification of or access to, and any other unauthorized processing of the personal data.

12. Points of Contact

To ensure cooperation between the Parties, the points of contact indicated on the Frontpage or in the electronic registering process of the client shall be used for daily communication, notifications, or changes to the Agreement. Either Party may change the contact person by sending an e-mail to the other Party’s contact with a 10 working days’ notice.

13. Revision and updates

13.1 As regards services or appendices, both Parties can request a contract revision/update based on a justifiable reason. The contact persons according to the process described in section 12, may agree on updates to any separate bilateral contract or appendices by sending suggested updates by e-mail to each other and confirming by e-mail that such updates are accepted and that the new version shall replace the previous version.

13.2 Cobuilder reserves the right to update and revise these General T&C including Special T&Cs at any time. Such updates shall be communicated to existing customers with a notice period of thirty (30) days before the changes come into effect. For new customers who enter into this Agreement after the date of the update/revision announcement has been made the amended General T&C and Special T&Cs shall apply.

14. Governing law and disputes

These General T&C and all Specific T&C, including appendices thereto are subject to the laws of Norway, excluding any conflict of law provisions.

Any dispute arising out of or relating to this Agreement shall be first attempted to be resolved through negotiations.

The Parties accept the competent Norwegian court as an exclusive legal venue for any litigation that might arise should the Parties fail to resolve disputes through negotiations within 2 months after starting the negotiations.