Last Updated: February 8, 2024
1. INTRODUCTION AND ACCEPTANCE OF TERMS
The Site has been specifically created to host certain Content in relation to certain work being performed on a subject piece of real property pursuant to a Services Agreement (the “Project”). The Site is meant to provide a platform on which such Content can be stored, reviewed and managed as it relates to the Project (the “Knowledge Bank”).
2.1 The Site. The Site (including modifications) is owned by and all right, title and interest in and to the Content available through the Site, with the exception of the Digital Files, are owned and controlled by WOWA, Inc., a California corporation. The Site is protected by U.S. and international copyright, trademark, patent or other intellectual property rights and laws to the fullest extent possible. The Content, with the exception of the Digital Files, and other features of the Site as well as the selection, arrangement, assembly, compilation and/or enhancement of the Content, with the exception of Digital Files, and any modifications thereto, are owned by or licensed to WOWA.
2.2 Digital Files. All information relating to the subject property of the Site contained in the form of graphs, models, reports, summaries or other documents and Confidential Information (as defined herein) (collectively, the “Digital Files”) and all common law, statutory law and other intellectual property rights relating to the Digital Files, all digital assets and the data contained therein are owned by the Person who is commissioning the Project (the “Digital Files Owner”). For clarity, WOWA does not own any information which constitutes a Digital File contained on the Site. You acknowledge that any related copyright, design rights and moral rights to the Digital Files remain with the Digital Files Owner and that any digital assets created by you are derivative works of the Digital Files owned by the Digital Files Owner. You hereby assign to the Digital Files Owner all materials produced from the Digital Files and all rights therein and, except with Digital File Owner’s prior written consent, you shall not use the Digital Files, any part thereof, or any derivative work therefrom to produce any materials not expressly required for the Project, including without limitation renderings, physical models, graphic design or marketing materials, nor may you use those materials for any purpose other than the Project. If in its sole discretion, the Digital Files Owner does consent to any other use, such consent will be conditioned, at a minimum, to the Digital Files Owner receiving credit as the producer and (to the extent applicable) copyright holder.
3. GENERAL USE OF THE SITE – PERMISSIONS AND RESTRICTIONS
3.1 Age Restrictions. You must be at least eighteen (18) years of age, be an emancipated minor, or, if over the age of thirteen (13), have the permission of your parent(s) or legal guardian(s), to participate in various features of the Site such as uploading any User Content such as any personally-identifying information on or passed through the Site. If you are under thirteen (13) years of age, please do not send any information about yourself, including your name, mailing address or email address without prior parental or guardianship consent. If you are under the age of majority in your state or jurisdiction of residence, you may only use this Site with the involvement of a parent or guardian who takes responsibility for your use and agrees to the Policies. If we discover that we have collected any personally-identifying information from a child under the age of thirteen (13) without prior parental or guardianship consent, we will remove that information from our database(s) as soon as possible.
3.2 Prohibited Activities. You agree not to:
Copy, alter, reproduce, create derivative works, remove, republish, post, publicly perform, publicly display, distribute, modify, broadcast, download, transmit, license or commercially exploit, in whole or in part, except as expressly permitted by WOWA herein or by the respective Content owner as applicable and as permitted in any required end user license agreement if any provided that you include without any modification or alteration all copyright and other propriety notices contained in the Content;
Collect or otherwise obtain any personally identifiable information from the Site or any Content available on the Site for any advertising, promotion or solicitation purposes, regardless of whether or not this is for commercial or non-profit purposes;
Disable, circumvent or otherwise interfere with security features of the Site or other features that prevent or restrict use or copying of any Content; or
Use the Site to generate unsolicited email advertisements or spam, to conduct or promote any illegal activity, for political campaigning, and/or soliciting support for legislative or other related initiatives.
3.3 User Acknowledgments. You acknowledge and agree that:
You may use the Digital Files only for your own use in relation to the Project and only for the following express purposes:
building dimensions and areas of existing property;
project submissions, visualizations, planning and design reviews;
background on which to prepare design, shop or other drawings and other submittals;
3D coordination / clash detection / schedule simulation (4D);
take offs / quantity estimates of specific items; and
fabrication / procurement of components;
You may not access, forward, sell, trade, distribute, or permit access to the Digital Files, to any third party, including without limitation Project consultants, subconsultants, contractors, subcontractors, and facility managers, unless the Digital Files Owner has expressly agreed to such access in writing, it being understood that such agreement will not be forthcoming from the Digital Files Owner unless and until such proposed third party has agreed to the Policies and been granted access to the Site by WOWA;
You may not alter, modify, amend or change in any manner the contents of the Digital Files, or separate any content, schedules, materials, wall types or legends which are included as elements within the Digital Files, or in any portion of the Digital Files;
You shall ensure that any work product created by you relating to the Project shall be uploaded to the Site only and that no hard copy originals or copies shall be kept by you nor shall any such work product or copies thereof be stored on your local drives or any other electronic form other than on the Site;
You shall verify and check all information contained within the Digital File and be solely responsible for fully ascertaining all site conditions and measurements relevant to your Project deliverables;
While the Digital Files Owner and WOWA haves taken reasonable precautions to ensure that Digital Files are “virus-free”, you take full responsibility of assuring that this is the case, and that you shall have no entitlement to any claims or damages against either the Digital Files Owner or WOWA connected to any damage to your computing systems and/or files in the access or use of the Digital Files;
The Digital Files provide a representation of then dated design, are not construction documents, nor do the Digital Files reflect construction or contract documents, and that there may be significant and material differences between the Digital Files and any corresponding existing conditions, new construction, or contract documents, including but not limited to previously prepared construction or contract documents;
Data contained in the Digital Files may change subsequent to the issue of Digital Files to you, however, neither the Digital Files Owner nor WOWA is under any requirement to advise you of any such changes or additions and no liability accrues to the Digital Files Owner for not advising you of any changes or additions;
You shall, at your sole expense, remove all references to the name and logo of the Digital Files Owner and WOWA, the name and logo of any other consultant, and all professional seals, in the use of the Digital Files. Furthermore, the Digital Files Owner and WOWA reserve the right to remove all references to the name and logo of the Digital Files Owner, the name and logo of any other consultant, and all professional seals, in the Digital Files provided to you; and
If the Digital Files are provided as linked components (due to size constraints or otherwise), you take full responsibility for any ‘binding’ which may be required by you and any resultant file corruption which may be a consequence thereof which is at your sole cost, risk and expense.
4. CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT
4.2 Disclosure and Use Requirements. You agree and covenant: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate or make Confidential Information available, or allow Confidential Information to be disclosed, published, communicated or made available, in whole or part, to any entity or person whatsoever not having a need to know the Confidential Information as it relates to the Project and, in any event, not to anyone outside of your direct employ, except as such disclosure is required in the performance of your authorized services under the Project and such disclosure shall only be made after the execution of a confidentiality agreement by the third party with whom Confidential Information will be shared in each instance, and then, such disclosure shall be made only within the limits and to the extent of such duties or consent; and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media or other resources containing any Confidential Information, or remove any such documents, records, files, media or other resources from the premises or control of the Company, except as required in the performance of your authorized services as it relates to the Project or with the prior consent of an authorized officer acting on behalf of WOWA or the Digital Files Owner in each instance and then, such disclosure shall be made only within the limits and to the extent of such duties or consent. Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required or permitted by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation or order. You shall promptly provide written notice of any such order to an authorized officer of WOWA and the Digital Files Owner within three (3) days of receiving such order, but in any event sufficiently in advance of making any disclosure to permit WOWA and/or the Digital Files Owner to contest the order or seek confidentiality protections, as determined in WOWA and the Digital Files Owner’s sole and absolute discretion.
5. USER GENERATED CONTENT
The Site may contain interactive areas such as comment sections, discussion forums, blogs, bulletin boards or other interactive sections (“Interactive Sections”) that contain user generated content provided by users, including text, photos, videos or other materials and/or content (“User Content”). You are solely responsible for your use of any Interactive Sections and your use of them is at your own risk. All User Content will be considered non-confidential and non-proprietary, and WOWA is free to use, copy, disclose, distribute and otherwise exploit any such User Content for any purpose that is not inconsistent with our Policies.
You are solely responsible for the User Content that you provide and any consequences of WOWA posting, publishing or otherwise distributing them. By submitting your User Content to the Site, you affirm, represent, and/or warrant that:
The User Content does not violate or infringe upon the rights of any person or entity;
The User Content does not violate any laws, rules or regulations;
The User Content is not an endorsement, express or implied, of any party, product or other entity;
The User Content is not in any way abusive, derogatory, defamatory, invasive of privacy or publicity rights, harmful to children, vulgar, profane, lewd, obscene, offensive, pornographic, threatening, harassing, violent, racist or hateful, nor does it encourage conduct that would be considered a criminal offense, or give rise to civil liability; and
You have not received payment or consideration of any kind for submitting the User Content to WOWA for posting on the Site or otherwise.
Unless you obtain a separate written agreement with WOWA, WOWA does not claim ownership in User Content that you submit, however, by submitting User Content to WOWA, you hereby waive any and all moral rights in connection with the User Content and you grant WOWA and its licensees, a perpetual, worldwide, non-exclusive, royalty-free, and transferable license to use, reproduce, distribute, sub-license, modify, create derivative works of (including without limitation, to rename, edit, modify, reconfigure reshape and use the User Content or portions thereof), publish, transfer, transmit, publicly display, publicly perform, host, index, cache, tag, encode, and/or adapt the User Content in any and all media formats and distribution channels, including, but not limited to, the WOWA services (including any promotion thereof), third party licensee web sites, over the air (on radio or television), and on mobile platforms, without payment and without further consent or notice. You further grant WOWA and its licensees the right to contact you in connection with your User Content and to use your name, geographic location and other information that you have provided with the User Content.
By submitting any User Content to the site, you are consenting to its display throughout the Site and for related promotional purposes.
WOWA does not endorse any User Content, or any opinions, recommendation or advice expressed therein, and expressly disclaims any and all liability in connection with User Content.
You acknowledge WOWA has no obligation to, and does not in the normal course of business, monitor or control any User Content that you post on the Site and that WOWA reserves the right to review refuse to post, remove, screen or edit User Content at any time and for any or no reason in our absolute and sole discretion without prior notice, although we have no duty to do so. If we have questions/concerns about your User Content, we have the right, but not the duty, to contact you for further information, including, for example, to verify that you own the copyright or otherwise have the rights to post the User Content.
6. CHANGES TO SITE
6.1 Removal of Content. WOWA does not allow for the infringement of intellectual property rights, including copyrights, trademarks or patents, etc. on the Site, and WOWA will remove Content (including User Content) if properly notified that such Content infringes on another’s intellectual property rights. WOWA reserves the right to remove Content (including User Content) without prior notice. Further, WOWA reserves the right to change or discontinue temporarily or permanently any Content, or related services available through the Site at any time without notice. WOWA will not be liable to you or any third party for any modification or discontinuance of the services therein.
6.2 Modifications. The terms listed within the Site may be modified by WOWA from time-to-time without notice. Continuing to use the Site after a modification has been made will indicate your acceptance of the revisions made. You should refer back to the Site for future updates and modifications.
6.3 Termination. You will no longer be granted access to the Site upon the earliest to happen of the following events: (i) the Project is completed; (ii) you breach any terms of the Policies or any other agreement which you have entered into with either WOWA or the Digital Files Owner relating to the Project; or (iii) any agreement between you and WOWA or the Digital Files Owner has been terminated for whatever reason.
7. INTELLECTUAL PROPERTY
7.2 Copyrights. All rights, including any intellectual property rights therein, and to this Site, Content and associated materials are owned by or licensed to WOWA, or otherwise used by WOWA as permitted by applicable law or agreement. In the case of User Content, the contents are licensed to WOWA by the user as provided for herein.
If you are a copyright owner or an agent of a copyright owner and believe that any Content on the Site infringes upon your copyrights, you may submit a notification to WOWA pursuant to the Digital Millennium Copyright Act (“DMCA”) section 17 USC 512 (c) (3). Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see https://www.copyright.gov/ for details. All notifications of claimed copyright infringement should be sent to WOWA via this form.
8. LINKS TO THIRD PARTY SITES AND OTHER SERVICES
The Site may contain links to other Internet sites, applications and services maintained by third parties, over which WOWA has no control. WOWA does not endorse the content, operators, products or services of such sites, and WOWA is not responsible or liable for the content, operators, availability, accuracy, quality, advertising, products, services or other materials on or available from such third-party sites. You further acknowledge and agree that WOWA shall not have any liability whether direct or indirect or otherwise, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
9. USER’S OBLIGATIONS TO ABIDE BY APPLICABLE LAW
10. PROHIBITION AGAINST OUTSIDE PROGRAMMING
You shall not post, transmit or make available in any way through the Site any software or other materials which contain a computer virus, trojan horse, worm or other outside programming. WOWA has no obligation to detect the presence of any such software or programming (“Rogue Programming”). Any downloading of software or other materials or any other use of the information on the Site is at your risk. Adequate precautions to minimize any loss to your system caused by Rogue Programming, including use of anti-virus programs and proper backup of files.
11. ONLINE COMMUNICATIONS
Please note that any online communications may not be fully confidential. Some personnel of WOWA may, in the course of their regular duties, have access to communications for technical or operational purposes. WOWA may have access to such communications and may need to disclose any communications to the extent permitted or required by law.
12. DISCLAIMER OF WARRANTIES
YOUR DOWNLOADING OF ANY CONTENT FROM OR THROUGH THE SITE AND IS AT YOUR OWN DISCRETION AND RISK. WITHOUT LIMITATION, YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
YOU EXPRESSLY ACKNOWLEDGE THAT THE DIGITAL FILES OWNER IS NOT RESPONSIBLE FOR, AND DOES NOT WARRANT OR GUARANTEE THE ACCURACY, CORRECTNEDD OR COMPLETENESS OF THE DIGITAL FILES OR THE DATA CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION ANY REFERNCE NOTES TO “AS-BUILT” OR SIMILAR. THE DIGITAL FILES OWNER OFFERS NO ASSURANCES THAT THE INFORMATION IN THE DIGITAL FILES IS REFLECTIVE OF A PREVIOUS CONTRACT OR AS-BUILT CONDITOINS, AND DISCLAIMS ALL RESPONSIBILITY FOR THE ACCURACY OR USE OF THE DATA CONTAINED IN THE DIGITAL FILES.
NEITHER WOWA NOR THE DIGITAL FILES OWNER MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
13. RELEASE AND INDEMNITY
YOU HEREBY RELEASE AND WAIVE ANY AND ALL CLAIMS AND/OR LIABILITY AGAINST WOWA AND/OR ITS AFFILITATES AND THE DIGITAL FILES OWNER ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE WOWA SITE AND THE USE OR RELIANCE ON THE DIGITAL FILES. YOU ALSO AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS, THE DIGITAL FILES OWNER, WOWA and its affiliates, and/or licensors, and their respective trustees, OFFICERS, directors, MANAGERS, ADVISORS and employees FROM AND AGAINST, ANY AND ALL CLAIMS OR LIABILITY, INCLUDING COSTS AND ATTORNEYS FEES, ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE WOWA WEBSITE, USE OR RELIANCE ON THE DIGITAL FILES, OR YOUR FAILURE TO ABIDE BY APPLICABLE LAW.
14. LIMITATION OF DAMAGES
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WOWA OR THE DIGITAL FILES OWNER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM THE USE OR INABILITY TO USE THE WOWA SITE, INCLUDING WITHOUT LIMITATION USE OF OR RELIANCE ON CONTENT AVAILABLE ON THE SITE, INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETIONS OF FILES, DELAYS IN OPERATION OR TRANSMISSION, NONDELIVERY OF CONTENT, DISCLOSURE OF COMMUNICATIONS OR ANY OTHER FAILURE OF PERFORMANCE.
16. GENERAL PROVISIONS