QFV User Agreement

This QFV® & QTO™ User Agreement (this “Agreement”) governs the use by you and your employees that have been granted valid login/access credentials (the “Authorized Users” and, together with you, the “Company”) of the “Quick-Fit Visual®” 3-D computer design graphics floor plan ductwork design service (“QFV®”) provided by Nordfab LLC (“Nordfab”), which is accessible via the Internet as a software-as-a-service. QFV works in conjunction with QTO, Nordfab's quoting tool which is also available via the Internet as a software-as-a-service, to provide users with quotations for the bills of material associated with QFV designs.

PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY AND INDICATE YOUR ACCEPTANCE BY CLICKING THE “I ACCEPT” BUTTON. BY CLICKING “I ACCEPT” OR OTHERWISE ACCESSING QFV® AND/OR INSTALLING OR USING THE QFV MOBILE APP, YOU (I) EXPRESSLY AGREE AND CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (II) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE QFV. THIS AGREEMENT IS EFFECTIVE UPON ITS ACCEPTANCE.

1. General Conditions for Access and Use.

1.1 Authorization to Use QFV®.

1.2 Subject to the terms and conditions of this Agreement, Nordfab hereby (i) authorizes each Authorized User, during the term of this Agreement, on a non-exclusive and non-transferable basis, to access and use QFV® through Nordfab’s QFV website, solely to create and generate one or more ductwork floor plans (including related information, each a “QFV Plan”) for use in quoting and purchasing Nordfab’s products and services (the “Permitted Use”). All quoting and purchasing of Nordfab products and services shall be subject to the Nordfab Terms and Conditions of Sale located at: https://www.nordfab.com/en/general-conditions-of-sale-nordfab-eu. Authorized Users may print one or more copies of QFV Plans for the Permitted Use.

1.3 Access Credentials; Authorized Users. Company will protect all login/access credentials issued by Nordfab to each Authorized User to ensure against unauthorized access to QFV® and treat such login/access credentials as Nordfab’s Confidential Information (defined in Section 4). Further, Company shall be responsible and liable to Nordfab for the acts, omissions and non-compliance with the terms of this Agreement of all Authorized Users to the same extent that as if such performance, acts, omissions and/or non-compliance were by Company.

1.4 Limitations. Company shall not, and shall not permit any other person (including, without limitation, any Authorized Users) to: (a) copy QFV® and/or QTO™, in whole or in part; (b) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of QFV and/or QTO; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available QFV and/or QTO to any third-party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (d) reverse engineer, disassemble, decompile, decode or adapt QFV and/or QTO, or otherwise attempt to derive or gain access to the source code of QFV and/or QTO, in whole or in part; (e) bypass or breach any security device or protection used for or contained in QFV and/or QTO; (f) use QFV and/or QTO in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law, rule or regulation; (g) use QFV and/or QTO or any QFV Plans for purposes of (1) benchmarking or competitive analysis of QFV, (2) developing, using or providing a competing software product or service, (3) purchasing a competing product or service, (4) copying features, functions or graphics of QFV or (5) any other purpose that is to Nordfab’s detriment or commercial disadvantage; (h) use any information, content, data, images and other product information included in and/or otherwise made available by Nordfab via QFV and/or QTO, any QFV Plans or QFV documentation (collectively, the “Nordfab Content”) for purposes of designing, developing, using or providing any competing ductwork products; or (i) upload to QFV and / or QTO any sensitive personal or financial data such as a driver’s license number, or credit card information.

2. Termination. Nordfab may terminate this Agreement, without cause and for convenience, at any time in its sole discretion. Company may terminate this Agreement at any time, without cause, upon written notice to Nordfab. Upon termination, Nordfab may immediately deny Company’s and its Authorized Users’ access to or use of all or any part of QFV®, QTO™, and the Nordfab Content, and Company must promptly destroy all copies of the QFV App and Nordfab Content in its possession. The other terms of this Agreement shall survive the expiration of or termination of this Agreement and shall continue in full force and effect.

3. Ownership and Use of Information; Intellectual Property Rights.

3.1 Nordfab Content. Nordfab and its licensors shall own and at all times will continue to own irrevocably and in perpetuity all right, title and interest in and to all QFV Plans and all other Nordfab Content, and all intellectual property rights therein. Nordfab grants each Authorized User a revocable license to use the QFV Plans created by such Authorized User only for the Permitted Use. The Nordfab Content is Nordfab’s Confidential Information, subject to the terms of Section 4 below.

3.2 QFV®. Nordfab shall own and at all times will continue to own all right, title and interest in and to QFV and in all of the methods, processes, techniques and other intellectual property used in QFV, and in all of the patents, copyrights, trade secrets, trademarks and other intellectual property rights embodied in or related to the use of QFV. Company acknowledges and agrees that its use of QFV and QFV Plans does not transfer to it any right, title or interest therein, except for the rights expressly granted under Section 1.2. Company shall not take any action that would challenge, jeopardize, limit or interfere in any manner with Nordfab’s rights with respect to QFV. Company shall not remove, modify, cover, obfuscate, or alter any Nordfab patent, copyright or trademark notice from any part of QFV.

3.3 Ownership of Derivative Works. Company and/or its Authorized Users may provide feedback to Nordfab with respect to the performance and/or functionality of QFV®, including, without limitation, any flaws, errors, bugs or other problems it discovers therein as well as suggested improvements or modifications of QFV. All feedback, information and suggestions provided by Company and its Authorized Users to Nordfab with respect to QFV shall be deemed “Ideas and/or Suggestions”. To the extent that any modifications, improvements, enhancements, upgrades, new releases or other derivative Works of QFV are developed by Nordfab (collectively, “Derivative Works”) based upon Ideas and/or Suggestions, Company hereby irrevocably assigns to Nordfab all rights to such Derivative Works and in all of the methods, processes, techniques and other intellectual property used in such Derivative Works, and in all of the patents, copyrights, trade secrets, trademarks and other intellectual property rights embodied in or related to the use of such Derivative Works.

3.4 License to Nordfab. Company’s data, specifications, information and other content that Authorized Users may enter into QFV® to create QFV Plans (collectively, “Company Content”) shall be owned by Company. Company is responsible for retrieving the Company Content, making backup copies of it, or deleting it as Company deems appropriate. In connection with Company’s and its Authorized Users’ use of QFV, Nordfab may obtain, receive, or collect data or information, including Company’s and its Authorized Users’ contact and computer system information, and may track and analyze Company’s and Authorized Users’ QFV activity and usage-specific data (collectively, the “Company Usage Data”). Company grants to Nordfab, its successor and assigns, a worldwide, royalty-free, perpetual, irrevocable license to use, compile, aggregate, store, process, reproduce, or create derivative works of the Company Content and Company Usage Data for Nordfab’s internal business purposes.

4. Confidential Information. During the term of this Agreement and for a period of five years thereafter, each receiving party (each, a “Recipient”) shall hold in strict confidence any proprietary or confidential information (collectively, “Confidential Information”) of the other party (the “Discloser”) and shall not disclose Discloser’s Confidential Information to any third party nor use the Discloser’s Confidential Information for any purpose except for purposes expressly provided for in this Agreement. The above restriction shall not be construed to restrict the use or disclosure of information disclosed by one party to the other that (a) is or becomes publicly known other than as a result of any act by the receiving party, (b) is lawfully received by the receiving party from a third party not in a confidential relationship with the disclosing party, (c) was already rightfully known by the receiving party prior to receipt thereof from the disclosing party or (d) after notice and an opportunity to object, is required by law to be disclosed. Recipient acknowledges that Discloser would have no adequate remedy at law should Recipient breach its obligations relating to Confidential Information and agrees that Discloser shall be entitled to enforce its rights by obtaining appropriate equitable relief, including without limitation a temporary restraining order and an injunction. Notwithstanding the foregoing, each party’s confidentiality obligations set forth herein shall survive with respect to the other party’s Confidential Information that is a trade secret for so long as such Confidential Information continues to be a trade secret under applicable law. Company Content and Company Usage Data shall not be deemed to be Confidential Information unless and to the extent that Nordfab otherwise agrees in writing.

5. Disclaimer of Warranties. QFV® AND QTO™ ARE PROVIDED AS-IS, WHERE-IS, AND AS-AVAILABLE. NORDFAB MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO QFV OR QTO, THE USE OF WHICH IS SOLELY AT THE RISK OF AUTHORIZED USER. NORDFAB DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NORDFAB MAKES NO WARRANTY OR REPRESENTATION THAT (I) QFV® WILL BE ERROR-FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, OR (II) QFV® AND/OR ANY QFV PLANS WILL SATISFY COMPANY’S, ITS CUSTOMERS’, OR ANY OTHER THIRD PARTY’S NEEDS, REQUIREMENTS, OR SPECIFICATIONS, OR COMPLY WITH FEDERAL, STATE, OR LOCAL CODES, REGULATIONS, OR LAWS OF ANY TYPE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NORDFAB, ITS EMPLOYEES OR AGENTS SHALL IN ANY WAY BE DEEMED A REPRESENTATION OR WARRANTY WITH RESPECT TO QFV® OR ANY QFV PLANS. WITHOUT LIMITATION OF ANY OF THE FOREGOING, COMPANY ACKNOWLEDGES AND AGREES THAT IT MUST RELY ON ITS OWN JUDGMENT AND KNOWLEDGE IN USING QFV AND ENTERING COMPANY CONTENT AND OTHER INFORMATION INTO QFV, AND IN USING ANY RESULTING QFV PLANS. COMPANY IS SOLELY RESPONSIBLE FOR THE ACCURACY AND COMPLETENESS OF ALL COMPANY CONTENT, SUCH OTHER INFORMATION AND QFV PLANS.

6. Indemnification. Company shall indemnify, defend and hold harmless Nordfab and its affiliates and their respective officers, employees and representatives (the “Nordfab Indemnitees”), from and against any and all liability, losses, damages, claims, fines, penalties and expenses (including reasonable attorney’s fees) incurred the Nordfab Indemnitees to the extent resulting from a third-party claim alleging that Company breached its obligations hereunder.

7. Limitation of Liability. NORDFAB SHALL NOT BE LIABLE TO COMPANY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS OR GOODWILL, BUSINESS INTERRUPTION OR LOSS OF DATA OR BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE QFV®, EVEN IF NORDFAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER ANY SUCH CLAIM ARISES IN TORT, CONTRACT, STATUTE OR OTHERWISE.

8. Force Majeure. Nordfab shall not be liable for delays in performance or for non-performance due to unforeseen circumstances or any events or causes beyond Nordfab’s reasonable control, including cyber-attacks, acts of God, war, epidemics, fire, flood, weather, sabotage, strikes or labor disputes, civil disturbances or riots or governmental action.

9. Assignment. Company may not assign all or any part of its rights or delegate all or any part of its duties hereunder without the prior written consent of Nordfab. Any such purported assignment or delegation, without such consent, shall be void. The parties’ rights and obligations under this Agreement will bind and inure to the benefit of their respective successors and permitted assigns.

10. Severability. The invalidity or unenforceability of any term or provision herein shall in no way affect the validity or enforceability of any other term or provision. The parties agree that any provision of this Agreement which is in violation of any federal, state, or local statute or other law, regulation, or rule shall be null and void.

11. Notice. Except as otherwise specified in this Agreement, all notices, instructions, requests, authorizations, consents, demands and other communications hereunder shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (a) by personal delivery (when actually delivered); (b) by overnight courier (upon written verification of receipt); or (c) by certified or registered mail, return receipt requested (upon verification of receipt). Unless otherwise designated in writing by Company, all notices to Company shall be delivered to Company’s principal place of business, attention “Legal Department”. All notices to Nordfab shall be addressed as follows: Nordfab LLC, 150 Transit Avenue, Thomasville, North Carolina, Attn: Sales Director. Any party may change the address to which notice is to be given by notice given in the manner set forth above.

12. Choice of Law and Venue. This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of North Carolina, excluding its choice of law rules. Exclusive jurisdiction and venue for any lawsuits brought by either party arising from this Agreement or related to transactions under this Agreement shall be in the courts of the State of North Carolina. In any event, this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

13. Interpretation. The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement. No failure or delay by either party in enforcing any of its rights under this Agreement shall be construed as a waiver of the right to subsequently enforce any of its rights, whether relating to the same or a subsequent matter. This Agreement does not grant any rights or remedies to any person or entity that is not a party to this Agreement and no person or entity is a third party beneficiary of this Agreement. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, such provision shall be deemed modified to the extent necessary to render such provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest extent permissible the intent and the agreements of the parties.

14. Who might we share your information with. If you represent a customer or potential custom, we may pass your contact data on to other companies within the Nordfab Group of companies and to partners representing Nordfab in order to provide the service and products you require. Your personal data will also be shared with third-party service providers contracted by Nordfab, such as software service providers for storing data.
 All our partners and third-party service providers are located either within the EU and thus bound to compliance with European Data Protection legislation (including the EU General Data Protection Regulation 2016/679 “the GDPR”), located within a country subject to an adequacy decision by the EU Commission; or in case a service provide is located outside of the EU in a country not subject to an adequacy decision by the EU Commission, Nordfab has entered in to Standard Contractual Clauses with the relevant third party. Apart for our partners, contracted third-party service providers, and internal transfers within the Nordfab group of companies, your information will not be shared with anyone else. Please note however, that we can provide access to your personal data in case of illegal or abusive use, or in case we receive orders from a competent legal authority.

15. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior agreement concerning the subject matter hereof. This Agreement may be amended, modified or supplemented only by written agreement of the parties. Nordfab is not bound by any of the terms and conditions of any purchase order, receipt, acceptance, confirmation or other correspondence provided by Company. Nordfab may modify this Agreement from time to time and will post the most up-to-date version here or on its website. Continued use of QFV® and QTO™ following any modification to this Agreement constitutes Company’s consent to be bound by the same.