Design Tool License Agreement
PLEASE READ THIS DESIGN TOOL LICENSE AGREEMENT ("LICENSE AGREEMENT") BEFORE ACCESSING OR USING THE DESIGN TOOL APPLICATION. ACCESSING THE DESIGN TOOL APPLICATION INDICATES YOUR ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, YOU MUST NOT ACCESS OR USE THIS DESIGN TOOL APPLICATION.
PLEASE REFER TO NMBS’ CATALOGS AND OTHER INFORMATION AVAILABLE ON THIS WEBSITE FOR ALLOWABLE LOADS, CORRECT COMPONENT SPECIFICATIONS, CORRECT FASTENERS, THE GENERAL SALE TERMS AND CONDITIONS, AND OTHER IMPORTANT INFORMATION ABOUT NMBS’ PRODUCTS.
Subject to the terms and conditions of this License Agreement, NMBS grants you a limited, non-exclusive, personal, nontransferable, nonsublicensable right and license to access and use the Design Tool Application. No other right or license of any kind is granted by NMBS to you with respect to the Design Tool Application.
You may not: (1) modify, translate, reverse engineer, decompile, disassemble, or create any derivative works based on the Design Tool Application, or any part thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Design Tool Application or any part thereof; (2) market, rent or lease the Design Tool Application for a fee or charge; (3) represent that the Design Tool Application, or any part thereof, is owned by any party other than NMBS; (4) remove or alter any proprietary notices, labels, marks or identifying information of any kind on the Design Tool Application; (5) incorporate the Design Tool Application or any part thereof into any other Design Tool Application or product; (6) use the Design Tool Application or any part thereof to refer to or facilitate selection of any products other than other than NMBS products; or (7) use the Design Tool Application for any purpose other than in accordance with the terms and conditions of this License Agreement.
NMBS retains all right, title and interest in and to the Design Tool Application including, without limitation, all patent rights, copyrights, trademarks and trade secrets, in and to the Design Tool Application, any part or copy thereof, and any derivative work, regardless of the form or media in or on which the original or other copies may subsequently exist. For purposes of this License Agreement, you agree to take any action reasonably requested by NMBS to evidence, maintain, enforce or defend any of the foregoing rights. You shall not take any action to jeopardize, limit or interfere in any manner with NMBS's ownership of and rights with respect to the Design Tool Application, or any derivative work. Unauthorized copying or use of the Design Tool Application or any part thereof or failure to comply with the above restrictions will result in automatic termination of this license and will make available to NMBS other legal remedies. This license is not a sale of the original or any backup copy. If any of NMBS's copyrighted works are reproduced or their contents displayed, you must include the legend "Copyright © 2016 New Millennium Building Systems, LLC. All rights reserved."
NMBS MAKES NO WARRANTY WITH RESPECT TO THE DESIGN TOOL APPLICATION. THE DESIGN TOOL APPLICATION IS MADE AVAILABLE "AS IS" AND WITH ALL FAULTS. NMBS DOES NOT WARRANT THAT THE DESIGN TOOL APPLICATION WILL BE FREE FROM ERRORS OR THAT ERRORS WILL BE CORRECTED.
YOU ACKNOWLEDGE THAT NMBS DOES NOT HAVE CONTROL OVER YOUR USE OF THE DESIGN TOOL APPLICATION, AND NMBS DOES NOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED THROUGH YOUR USE OF THE DESIGN TOOL APPLICATION. YOU ASSUME ALL RISKS AND RESPONSIBILITY FOR YOUR USE OF THE DESIGN TOOL APPLICATION.
NMBS MAKES AND YOU RECEIVE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR ALLEGEDLY EXTENDED IN ANY COMMUNICATION WITH YOU. NMBS SPECIFICALLY DISCLAIMS: (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT; (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR OPERATION OF THE DESIGN TOOL APPLICATION WILL BE ERROR FREE OR UNINTERRUPTED.
THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU AS SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN ADDITION, YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
THIS DESIGN TOOL APPLICATION IS A TOOL INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY. THIS DESIGN TOOL APPLICATION IS INTENDED TO BE USED ONLY IN CONJUNCTION WITH NMBS PRODUCTS. THE DESIGN TOOL APPLICATION IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT. THIS DESIGN TOOL APPLICATION IS INTENDED TO ASSIST WITH PRODUCT SELECTION, AND IS NOT A SUBSTITUTE FOR INDEPENDENT DESIGN OR TESTING FOR STRESS, SAFETY AND UTILITY. YOU MUST CONFIRM ALL RESULTS BY REFERRING TO ALL APPLICABLE STATE BUILDING CODES, LOCAL AMENDMENTS AND ALL OTHER INFORMATION NECESSARY TO DO SO, INCLUDING WITHOUT LIMITATION THE CURRENT NMBS CATALOG AND WEBSITE. NMBS SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE DESIGN TOOL APPLICATION. PERSONS USING THE DESIGN TOOL APPLICATION ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THE DESIGN TOOL APPLICATION. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE DESIGN TOOL APPLICATION, FILES, TABLES, DRAWINGS AND INFORMATION AND THE SELECTION OF THE OTHER PRODUCTS, SOFTWARE AND MATERIALS TO ACHIEVE INTENDED RESULTS. PERSONS USING THE DESIGN TOOL APPLICATION ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT, INCLUDING ALL PRODUCTS SELECTED BY USING THE DESIGN TOOL APPLICATION.
Limitation of Liability
IN NO EVENT WILL NMBS BE LIABLE FOR ANY DAMAGES, INCLUDING LOSS OF DATA OR INFORMATION OF ANY KIND, LOSS OF BUSINESS, LOST PROFITS, INTERRUPTION OF BUSINESS, COST OF COVER OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF THIS LICENSE AGREEMENT OR THE USE OR INABILITY TO USE THE DESIGN TOOL APPLICATION, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE). THIS LIMITATION WILL APPLY EVEN IF NMBS OR ANY DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU ACKNOWLEDGE THAT THE ROYALTY-FREE BASIS FOR RECEIVING THIS LICENSE REFLECTS THIS ALLOCATION OF RISK. IF YOU OBTAINED THIS LICENSE IN THE UNITED STATES, SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Term and Termination
The license provided herein is effective until terminated. This license automatically terminates if you fail to comply with its terms and conditions. Termination of this License Agreement by NMBS shall not act as a waiver of any breach of this License Agreement and shall not release you from any liability for breach of your obligations under this License Agreement. NMBS shall not be liable to you for damages of any kind as a result of terminating this License Agreement in accordance with its terms, and termination of this License Agreement by NMBS shall be without prejudice to any other right or remedy of NMBS under this License Agreement or applicable law.
Relationship of the Parties
Nothing contained in this License Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor their agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
Entire License Agreement
This License Agreement constitutes the entire License Agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, License Agreements and communications, whether oral or written, between the parties relating to the subject matter of this License Agreement and all past courses of dealing or industry custom. No amendment or modification of any provision of this License Agreement shall be effective unless in writing and signed by a duly authorized signatory of NMBS and you.
This License Agreement shall be governed by the laws of the State of Indiana, including its Uniform Commercial Code without reference to conflicts of laws principles. You expressly agree that exclusive jurisdiction for any dispute with NMBS, or in any way relating to your use of the Design Tool Application, resides in the state courts of Allen County, Indiana, and in the federal courts of the Northern District, Fort Wayne Division, and you further agree and expressly consent to the exercise of personal jurisdiction of such courts in connection with any such dispute including any claim involving NMBS or its parent companies, affiliates, subsidiaries, employees, contractors, officers, and directors.
This License Agreement is the entire License Agreement between the parties and supersedes any other communications or advertising with respect to the Design Tool Application and accompanying documentation. If you have any questions, please contact in writing NMBS Customer Service.