BuildSite Customer Agreement
BuildSite will provide the following services under this Agreement (the "Services"):
Access to BuildSite's Web site and a vast database of product and technical information including data sheets, material safety data, installation instructions, specifications, testing and agency reports, and other documents, provided by manufacturers as well as non-manufacturer publishers (such as trade associations and standard bodies), (collectively, "Publisher Data"),
Use of BuildSite's proprietary database schema that indexes and manages the data,
Use of BuildSite's proprietary software tools that will allow Customer to search the data, to create and deliver customized messages, submittals and proposals combining Publisher Data with Customer's own contact information, uploaded documents and other presentation materials (collectively "Customer Data"), and
Access to customer support, including Web based training, telephone and email support, currently available weekdays (other than holidays) from 9 am - 5 pm Pacific time weekdays by calling (888) 717-8665 or emailing firstname.lastname@example.org, and periodic emails describing BuildSite news and updates.
The Services will be accessible and functional at all times subject to interruptions for required maintenance and emergencies or other situations beyond BuildSite's control.
Subject to the terms and conditions of this Agreement, BuildSite will provide Customer a limited, non-exclusive and non-transferable license to use the Services during the term of this Agreement, solely at the Customer's business locations specified in the Application and solely for Customer's internal business purposes.
2. BuildSite's Representations and Warranties.
BuildSite represents and warrants to Customer that it has all necessary rights to provide the Services to Customer. BuildSite further represents and warrants that it will provide the Services in a professional and workmanlike manner. As Customer's sole and exclusive remedy for breach of any of the foregoing warranties, BuildSite will refund to Customer the License Fee that Customer has paid to BuildSite for the then-current month.
BuildSite is not responsible for the content of any Publisher Data or Customer Data, each of which is furnished "as is," and BuildSite makes no representations or warranties regarding the accuracy of any Publisher Data or Customer Data or their ability to meet Customer's requirements.
In the event of (and to the extent that) a claim by a third party against Customer for infringement of intellectual property rights or violation of trade secrets based on Customer's use of the Services (other than as to Publisher Data or Customer Data) in accordance with, and during the term of, this Agreement, BuildSite will indemnify, defend, and hold harmless Customer, its officers, directors, employees and agents, in connection with such claim, including reasonable attorneys' fees and costs of litigation arising therefrom. The foregoing indemnity shall not apply to any use of the Services not expressly authorized by this Agreement. This section constitutes Customer's sole and exclusive remedy, and BuildSite's sole obligation and liability in the event of any claim by a third party against Customer for infringement of intellectual property rights or violation of trade secrets based on Customer's use of the Services.
3. Customer Responsibilities.
- Customer agrees that only Customer may use the Services. Customer may not provide or allow access to the Services to third parties unless authorized in writing by BuildSite and may not use the Services to provide similar services to any third party. Customer assumes all responsibility for the use of any user ID's and passwords assigned to Customer.
- Customer is solely responsible for its use of any data or information obtained by use of the Services, and Customer is solely responsible for the quality and accuracy of Customer Data.
Customer acknowledges that all copyright, patent, trade secret, trademark and other intellectual property and proprietary rights of any kind throughout the world related to the Services (other than with respect to Publisher Data and Customer Data) and any copy, derivation or modification thereof are and will be the exclusive property of BuildSite or its licensors. Customer will not take any action that jeopardizes BuildSite's or its licensors' proprietary rights. Any Customer Data supplied to BuildSite is and shall remain the exclusive property of Customer.
4. Fees and Payment.
Customer will pay BuildSite the specified monthly fees. The license fee is billed monthly in advance. Fax charges are included for normal business use.
- Fees do not include taxes. Customer agrees to promptly pay or reimburse BuildSite for the payment of all sales, use, value-added or similar taxes that are based on the Services, excluding any taxes based on BuildSite's net income.
From time to time, BuildSite may disclose confidential information ("Confidential Information") about its business to Customer, and Customer may disclose Confidential Information about its business to BuildSite. Each party will identify Confidential Information as such. Each party agrees that it will not disclose such Confidential Information to any third party. The Services and the terms of this Agreement are the Confidential Information, and contain valuable trade secrets, of BuildSite, and Customer Data is the Confidential Information, and contains valuable trade secrets, of Customer. This Section will not restrict either party from complying with any law, regulation or governmental demand.
6. Term and Termination.
This Agreement will start on the date Customer provides payment and will remain in force until terminated as provided below. Ongoing monthly and other periodic fees are subject to change ninety (90) days following notification by BuildSite.
Either party may terminate this Agreement at its discretion and without cause upon written notice. BuildSite does not provide partial refunds.
Upon the termination or expiration of this Agreement for any reason, all rights granted to Customer under this Agreement will cease. Customer will pay BuildSite all amounts that have become due prior to termination.
Sections 2C, 3C, 3D, 3E, 5, 6C, 6D and 7 through 12 will survive the expiration or termination of this Agreement.
7. Disclaimer, Limitations of Liability and Procedure for Claims of Indemnity.
THE EXPRESS WARRANTIES IN SECTION 2 ARE MADE IN LIEU OF, AND BUILDSITE HEREBY DISCLAIMS, ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT, OR ANY WARRANTIES ARISING OUT OF A COURSE OF DEALING, CONDUCT, OR INDUSTRY PRACTICE. In the event that, as a matter of law, BuildSite may not disclaim any warranty, the scope and duration of such warranty shall be the minimum permitted under applicable law.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, DATA OR SALES) ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF SUCH DAMAGES IN ADVANCE. BUILDSITE'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO BUILDSITE HEREUNDER DURING THE PRIOR 12-MONTH PERIOD. The laws of certain jurisdictions do not permit the disclaimer of liability for certain types of damages, so some of the foregoing limitations may be inapplicable to Customer. Customer acknowledges and agrees that the disclaimer of warranties, limitations on liability and limited remedies contained in this Agreement are fundamental parts of the basis of the bargain hereunder, and BuildSite would not be able to provide the Services to Customer absent such limitations.
The indemnifying party's indemnification obligations as stated in Sections 2C and 3E are conditioned upon the indemnified party: (a) giving prompt notice of the claim to the indemnifying party, (b) granting sole control of the defense or settlement of the claim or action to the indemnifying party (except that the indemnifying party must obtain the indemnified party's prior written approval for any settlement that could reasonably be expected to require of the indemnified party a material affirmative obligation, or result in the indemnified party's ongoing material liability), and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party's request and expense, assistance and the defense or settlement of the claim.
Customer may not assign or transfer this Agreement nor any rights under this Agreement. BuildSite may, without Customer's consent, assign or transfer this Agreement and/or pledge its rights to receive payments from Customer. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, the parties and their respective successors and permitted assigns.
Any notice under this Agreement will be deemed to be given when delivered by electronic mail. Parties will notify each other of address changes.
10. Modification and Severability.
This Agreement may not be modified or amended except by an instrument in writing executed by both parties. Furthermore, if any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will continue in full force and effect.
11. Governing Law; Venue and Jurisdiction.
This Agreement will be governed by and construed in accordance with the laws of California. The parties shall attempt to resolve any controversy or claim arising out of or relating to the creation, performance, termination and/or breach of this Agreement in the first instance through good faith negotiation or mediation between the parties. Any claims or disputes arising from or related to this Agreement shall be resolved through binding arbitration via the American Arbitration Association and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any proceeding under this Agreement will be brought exclusively in Alameda County, California, and the parties hereby irrevocably consent to the personal jurisdiction and venue of any court in such county.
12. Entire Agreement.
This Agreement sets forth the complete, final and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes and integrates any and all prior and contemporaneous negotiations, discussions, agreements, communications or understandings, oral or written, between the parties as to such subject matter.