Terms of Use

Welcome to BIMstream Inc ("Company," "we," "our," or "us")

These Terms of Use ("Terms") govern your use of our websites located at bimstream.com and cerqa.cloud and any related subdomains (the "Site"). These Terms are a legal agreement between you and the Company and by accessing or using the Site, you agree to be bound by them, including your agreement to waive the right to a trial by jury or to participate in a class action.

Our Privacy Policy also governs your use of our Site and explains how we collect, safeguard, and disclose information resulting from your use of the Site. By using the Site, you confirm that you have read, understood, and agree to be bound by both these Terms and our Privacy Policy (collectively, the "Agreements").

If you do not agree to these Agreements, please discontinue using the Site and contact us at support@cerqa.cloud for assistance.

1. General Terms and Conditions

The Site provides you with information about our products and services. If you have an Account (defined below), then you may gain access to a portion of the Site that will allow you access to tools and services for Reality Capture and Digital Twin (Building Information Modeling, or "BIM") applications.

You understand and agree that the Company may change these Terms at any time without prior notice. The Company will endeavor to provide you with prior notice of any material changes. The current, effective copy of these Terms will be posted at bimstream.com and cerqa.cloud. The revised Terms will become effective at the time of posting on the Site, and your use of the Site after such time will constitute your acceptance of the revised Terms. If any change to these Terms are not acceptable to you, then your sole remedy is to stop using the Site.

The Site is controlled and operated by the Company from its offices in Massachusetts. The Company makes no representation that materials on the Site are appropriate, lawful, or available for use in any locations other than the United States. Those who choose to access or use the Site from locations outside the United States do so on their own initiative and are responsible for compliance with local laws.

The Site is not intended for persons under the age of 13 or for any users previously suspended or removed from the Site by the Company. If you are under 13 years of age, then you must not use or access the site at any time or in any manner. Furthermore, by using the Site, you affirm that either you are at least 18 years of age or have been authorized to use the Site by your parent or legal guardian who is at least 18 years of age.

2. Communications

By using our Site, you agree to receive communications from us, including newsletters, marketing materials, and other promotional content. You can opt out of these communications at any time by clicking the "unsubscribe" link in the email or contacting us at support@cerqa.cloud.

3. Purchases

When purchasing products or services ("Purchases") through our Site, you may be required to provide specific information, including payment details. You warrant that:

1. You have the legal right to use the payment method(s) provided.
2. The information supplied is accurate and complete.

We may use third-party services to process payments and facilitate Purchases. By providing your payment details, you authorize us to share this information with third parties as outlined in our Privacy Policy.

We reserve the right to cancel or refuse orders for reasons including, but not limited to, product availability, errors in pricing or description, or suspected fraudulent or unauthorized transactions.

4. Promotions

Any contests, sweepstakes, or other promotions ("Promotions") offered through the Site may be governed by separate terms. Participation in Promotions constitutes agreement to their specific rules. In the event of a conflict between Promotion rules and these Terms, the Promotion rules will take precedence.

5. Subscriptions

Certain parts of the Service are available on a subscription basis ("Subscription(s)"). Unless otherwise governed by a Master Subscription Agreement, Subscriptions are billed in advance on a recurring basis ("Billing Cycle"). Subscriptions renew automatically unless canceled prior to the end of the current Billing Cycle. We may revise Subscription fees with prior notice. Fee changes will become effective at the end of the current Billing Cycle. Continued use of the Site after the change constitutes acceptance of the new fees.

To cancel, you may use your account management page or contact support@cerqa.cloud. Failure to provide valid payment information may result in termination of your Subscription.

6. User Content

"User Content" is any content that you post, share, or otherwise make available to the Site, including without limitation, text, photographs, and/or any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to patent, trademark, trade secret, and copyright laws. User Content excludes Company Content and Feedback.

If you post User Content to the Site, you grant us a worldwide, non-exclusive, royalty-free, transferable, and sublicensable license to host, store, transmit, use, display, and distribute your User Content as part of the Site and the Company's business. You retain all ownership rights to your User Content.

You are solely responsible for your User Content and the consequences of posting User Content on the Site. By posting User Content on the Site, you represent and warrant that: (i) you are the creator and owner of, or have the necessary licenses, rights, and permissions, to use, and to authorize the Company to use, your User Content; and (ii) your User Content and the use of your User Content under these Terms does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, or privacy right or cause the Company to violate any law or regulation. We are under no obligation to edit or control User Content that you or others post on the Site, and will not be in any way responsible or liable for User Content. The Company may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable.

7. Prohibited Uses

You agree to use the Site only for lawful purposes. You agree not to (and not to attempt to):

• Decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Site;
• Use any device, software, or routine to interfere or attempt to interfere with the proper working of the Site;
• Delete or alter any material the Company makes available on the Site;
• Link to any of the materials or information available on the Site;
• Violate any applicable law or regulation or these Terms;
• Harass, harm, or exploit others;
• Distribute spam or unauthorized advertising;
• Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or other equipment, or any other aspect of the Site.

8. Analytics

We may use third-party services to monitor and analyze the use of the Site.

9. Accounts

In order to use the full benefits of the Site, you must register an account with us ("Account").

You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your log-in credentials. You agree to notify us immediately at support@cerqa.cloud if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. The Company will not be liable for any loss or damage arising from unauthorized use of your log-in credentials prior to you notifying the Company of such unauthorized use or loss of your log-in credentials.

When creating an Account, you agree to provide true, accurate, complete, and up-to-date information. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to suspend or terminate your Account, with or without prior notice, if activities occur on your Account which, in our sole discretion, would or might constitute a violation of these Terms, cause damage to or impair the Site, infringe or violate any third party rights, damage the Company, or violate any applicable laws or regulations.

10. Intellectual Property

Except for User Content, the content that the Company provides to you on the Site, including without limitation, any text, graphics, software, interactive features, information or other materials ("Company Content"), is protected by copyright, trademark, and other intellectual property rights and owned by the Company or its licensors. You may not use this material without prior written consent. Subject to your complete and ongoing compliance with these Terms, the Company hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Site in compliance with the provisions of these Terms.

11. Copyright Policy

a. Respect of Third-Party Rights. We respect the intellectual property rights of others and takes the protection of intellectual property very seriously. Infringing activity will not be tolerated on the Site.

b. Repeat Infringer Policy. Our policy is to (i) remove or disable access to material that we believe in good faith, upon notice from an intellectual property owner or its agent, is infringing the intellectual property of a third party by being made available on the Site; and (ii) remove any User Content Posted to the Site by "repeat infringers." The Company considers a "repeat infringer" to be any user that has uploaded User Content to the Site and for whom the Company has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content. We have discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon our own determination.

c. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Site has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a "Notification of Claimed Infringement" containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by the Company with the user alleged to have infringed a right you own or control, and you hereby consent to the Company making such disclosure. Your communication must include substantially the following:

1. a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
2. identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
3. identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material;
4. information reasonably sufficient to permit the Company to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
5. a statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.

d. Designated Agent Contact Information. The Company's designated agent for receipt of Notifications of Claimed Infringement can be contacted at:

1. Via E-mail: support@cerqa.cloud; or
2. Via U.S. Mail: BIMstream Inc. 34 Main Street Extension Plymouth, MA 02360

e. Counter Notification. If you receive a notification from the Company that material you posted on the Site has been the subject of a Notification of Claimed Infringement, then you will have the right to provide the Company with what is called a "Counter Notification." To be effective, a Counter Notification must be in writing, provided to the Company's Designated Agent through one of the methods identified above and include substantially the following information:

1. your physical or electronic signature;
2. identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which the Company may be found, and you will accept service of process from the person who provided notification in accordance with the above or an agent of such person.

You should consult a lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Counter Notification under the Copyright Act.

f. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to the Company in response to a Notification of Claimed Infringement, then the Company will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that the Company will replace the removed User Content or cease disabling access to it in 10 business days, and the Company will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless the Company's Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on the Company's system or network.

g. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that: "[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [the Company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it." 17 U.S.C. § 512(f).

The Company reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.

12. Feedback

If you choose to contribute by sending us or our employees any ideas for products, services, features, modifications, enhancements, content, technologies, strategies, product or feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, "Feedback"), you irrevocably grant us the perpetual and unlimited right to reproduce, distribute, create derivative works of, modify, make available, and otherwise use and exploit the Feedback for any purpose and without compensation or restriction and without attribution of any kind.

13. Third-Party Links

The Site may contain links to third-party websites. We are not responsible for the content or practices of these external sites and do not make any representations regarding the content or accuracy of any materials on these external sites. Use them at your own risk. Additionally, you will be solely responsible for compliance with any terms of service or similar terms imposed by these external sites in connection with your use of such sites.

14. Limitation of Liability and Disclaimer of Warranties

To the extent permitted by law:

NEITHER THE COMPANY NOR ITS AFFILIATES (COLLECTIVELY, "COMPANY PARTIES") MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SITE OR ANY CONTENT. ACCORDINGLY, THE SITE AND ALL CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE COMPANY PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. CONSEQUENTLY, YOU AGREE THAT YOU SOLELY ASSUME ALL RISKS ARISING FROM YOUR USE OF THE SITE.

WITHOUT LIMITING THE ABOVE, THE COMPANY PARTIES DO NOT WARRANT THAT THE SITE AND ANY CONTENT ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR ANY CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO COMPANY PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.

IN NO EVENT WILL ANY COMPANY PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SITE AND ANY CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF THE COMPANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY'S LIABILITY, AND THE LIABILITY OF ANY OF THE OTHER COMPANY PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING FROM THESE TERMS IS LIMITED TO U.S. $100.

15. Indemnification

To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Company Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal fees, arising or resulting from (i) your breach of these Terms; or (ii) your access to, use, or misuse of the Company Content or the Site. The Company will provide notice to you of any such claim, suit, or proceeding. The Company reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section if the Company believes that you are unwilling or incapable of defending our interests. In such case, you agree to cooperate with any reasonable requests assisting the Company's defense of such matter at your expense.

16. Governing Law and Dispute Resolution

These Terms are governed by the laws of the Commonwealth of Massachusetts, without respect to its conflict of laws provisions.

a. General. In the interest of resolving disputes between you and the Company in the most expedient and cost-effective manner, you and the Company agree that any dispute arising out of or in any way related to these Terms or your use of the Site, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms, will be resolved by binding arbitration. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.

b. Exceptions. Notwithstanding Section 16.a above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.

c. Arbitrator. Any arbitration between you and the Company will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at adr.org, by calling the AAA at 1-800-778-7879, or by contacting the Company. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail ("Notice"). The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or the Company must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by the Company prior to selection of an arbitrator, the Company will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by the Company in settlement of the dispute prior to the arbitrator's award; or (C) $100.

e. Fees. If you commence arbitration in accordance with these Terms, the Company will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Boston, Massachusetts, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits. Notwithstanding anything in these Terms to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under this Section 16.

f. No Class Actions. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.

g. Modifications to this Arbitration Provision. Except as otherwise provided in these Terms, if the Company makes any future change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and the Company.

h. Enforceability. If Section 16.f above is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void.

17. Miscellaneous

As between you and the Company, the term of these Terms commences as of your first use of the Site and continues until the termination of these Terms by either you or the Company. You may terminate these Terms by sending written notification to the Company and terminating your use of the Site. We reserve the right, in our sole discretion, to restrict, suspend, or terminate your access to all or any part of the Site or to terminate these Terms at any time without prior notice or liability if you breach any provision of these Terms or violate the rights of any third party on or through the Site. We reserve the right to change, suspend, or discontinue all or any part of the Site at any time without prior notice or liability.

You agree that no joint venture, partnership, employment, or agency relationship exists between you and the Company as a result of these Terms or use of the Site.

If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect.

Failure of the Company to act on or enforce any provision of these Terms will not be construed as a waiver of that provision or any other provision in these Terms. No waiver will be effective against the Company unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance.

18. Changes to Terms

We may update these Terms periodically. Continued use of the Site after changes constitutes acceptance of the revised Terms.