Online Customer Agreement and Standard Terms of Service
Welcome to BuildSite! BuildSite will provide the following services under this
Agreement (the “Services”):
Access to 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
Use of BuildSite proprietary systems to index and manage the data,
Use of BuildSite proprietary software to allow Customer to search the data and 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 telephone and email support, currently available
weekdays (other than holidays) from 9 am – 5 pm Pacific time 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 a single Customer business location and
solely for Customer’s internal business purposes.
2. BuildSite’s Representations and Warranties.
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, if any, that
Customer has paid to BuildSite for the then-current month.
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.
C. 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.
shall provide its own Internet connection and a valid email account. Customer
they may be amended from time to time.
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.
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.
the event of a third party claim against BuildSite resulting from or based on:
(a) Customer Data supplied by the Customer or through its account;
(b) Customer’s unauthorized use of the Services; (c) personal injury or
property damage related to the activities of Customer or its employees or
customers; or (d) breach by Customer or its employees or agents of this
harmless BuildSite, its officers, directors, employees and agents, in
connection with such a claim, including reasonable attorneys’ fees and costs of
litigation arising therefrom.
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
4. Fees and Payment.
will pay BuildSite the specified monthly fees, if any. The license fee is
billed monthly in advance. Fax charges are included for normal business use.
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.
5. Confidentiality. 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 are the Confidential Information, and contain
valuable trade secrets, of BuildSite. Customer Data is the Confidential
Information, and contains valuable trade secrets, of Customer. Notwithstanding
the foregoing, BuildSite may report usage information to manufacturers and
other third parties, including, without limitation, data on product selection,
customer location, and project name. This Section will not restrict either
party from complying with any law, regulation or governmental demand.
6. Term and Termination.
A. This Agreement will start on
the date Customer signs up for the Services 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.
party may terminate this Agreement at its discretion and without cause upon
written notice. BuildSite does not provide partial refunds.
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.
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.
A. 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
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
B. 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.
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.
8. Assignment. Customer
may not assign or transfer this Agreement or 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
9. Notices. 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.