1. DEFINITIONS. Capitalized terms shall have the meaning set forth below.
1.2 “Claim” means a claim, action, proceeding, or demand made against a person or entity, however arising and whether present or future, fixed or unascertained, actual, threatened or contingent.
1.3 “Customer” means the company or legal entity that registered to use the SlatPlanner Application under this SlatPlanner Application Subscription Agreement for the Project.
1.4 “Customer Data” means all raw data, information and other content that is provided to R&M by End Users for the SlatPlanner Application related to the Project.
1.5 “Confidential Information” means a Discloser’s non-public information (including R&M Technology, customer lists, employee lists, etc.) whether or not marked or identified as confidential. The Party disclosing Confidential Information is referred to as “Discloser” and the Party receiving Confidential Information is referred to as “Recipient”. Confidential Information includes non-public R&M Technology and non-public Customer Data. Confidential Information does not include information that: (a) is or becomes generally publicly available at or after the time of disclosure through no fault of Recipient; (b) was known to Recipient free of any confidentiality obligations, before its disclosure by Discloser; (c) becomes known to Recipient free of any confidentiality obligations from a source other than Discloser; or (d) is independently developed by Recipient without use of Confidential Information.
1.6 “End User(s)” means each individual Personnel of Customer who is authorized by Customer and this Agreement to use any portion of the SlatPlanner Application.
1.7 “Law” means those applicable federal and state statutes, regulations, codes, ordinances, agency directives, binding court orders and other binding government requirements.
1.8 “License Term” means the consecutive period for which Customer pays the applicable monthly fee for access to the SlatPlanner Application for the Project, or for free trial access, until termination.
1.9 “Loss” means any damage, loss, cost, expense, or liability incurred by a person or entity.
1.10 “Party” means R&M or Customer, as applicable.
1.11 “Personnel” means, with respect to each Party, such Party’s officers, employees and contractors.
1.12 “Project” means the interrelated tasks and activities related to a single construction project identified when Customer registered to use and access the SlatPlanner Application.
1.13 “R&M” or “Company” means Robins & Morton, Inc.
1.14 “R&M Technology” means the SlatPlanner Application, including all hardware, interfaces, templates, forms, software tools, algorithms, software (in source and object forms), user interface designs, architecture, toolkits, plug-ins, objects, documentation, network designs, ideas, processes, know-how, methodologies, formulas, systems, data, heuristics, designs, inventions, techniques, trade secrets, and any related intellectual property rights throughout the world included therein, as well as any derivatives, modifications, improvements, enhancements, or extensions of the above, whenever developed. R&M Technology also includes the SlatNotes and Sticker Sheets that are recommended for use with the SlatPlanner Application.
1.15 “SlatPlanner Application” means the digital project planning SlatPlanner software application program which is made accessible for Customer to use under the terms of this Agreement. SlatPlanner Application includes any updates, enhancements, and new features to the functionality of the SlatPlanner Application incorporated by R&M, all of which are subject to this Agreement.
1.16 “Third Party” means any person or entity other than R&M or Customer (including Customer’s Personnel).
1.17 “Virus” means viruses, worms, trap doors, Easter eggs, time bombs, cancel bots, trojans and other malware or malicious code intended to cause or that cause computers or systems to fail to act properly or to function in an unintended manner or permit unintended access to such computers or systems. License keys and other functionality intentionally inserted in SlatPlanner Application by R&M are not Viruses.
2. SLATPLANNER APPLICATION
2.1 Grant. Subject to Customer’s compliance with the terms of the Agreement, R&M grants Customer, during the License Term and solely for the Project, a limited, non-exclusive, terminable, non-transferable license to access and use the SlatPlanner Application for its internal use by End Users. All rights not expressly granted to Customer are reserved to R&M, and all uses not expressly permitted hereunder are prohibited. Customer may authorize Affiliated Provider Personnel to be Licensed Users.
2.2 Limitations on Access and Use. Except to the limited extent expressly permitted in this Agreement, Customer will not: (a) sell, transfer, lease, assign, sublicense, encumber, or distribute any of the SlatPlanner Application; (b) use the SlatPlanner Application as a service bureau; (c) permit any End User or other person to access or use the SlatPlanner Application using another End User’s ID, login or password or otherwise make an End User’s ID, login or password available to any Third Party; (d) import, add, modify or delete data in the SlatPlanner Application database by any method other than direct data entry through the SlatPlanner Application; (e) use the SlatPlanner Application to process anything other than Customer Data; (f) use the SlatPlanner Application for any purpose that is unlawful or prohibited by the Agreement; (g) use the SlatPlanner Application in any manner that could damage, disable, overburden, or impair any R&M server, or the network connected to R&M, or interfere with any other party’s use and enjoyment of the SlatPlanner Application; (h) attempt to gain unauthorized access to any part of the SlatPlanner Application, other accounts, computer systems or networks connected to any R&M server, through hacking, password mining, or any other means; (i) obtain or attempt to obtain any materials, information, or functionality through any means not intentionally made available through the SlatPlanner Application; (j) copy, reproduce, alter, adapt, translate, modify, transmit, perform, create derivative works of, sub-license, distribute, or circulate the SlatPlanner Application, or any associated applications, tools, or data thereof, except to the extent permitted under the Law; (k) disassemble, decompile, reverse engineer, or otherwise attempt to discover the source code in the SlatPlanner Application, or use a robot, spider, or any similar device to copy or catalog any materials or information made available through the SlatPlanner Application, except to the extent permitted under the Law; and (l) take any actions, whether intentional or unintentional, that may circumvent, disable, damage, or impair the SlatPlanner Application control or security systems, or allow or assist a Third Party to do so.
2.3 Suspension of Service. R&M may at any time suspend (or require that Customer suspend) the access of End Users to the SlatPlanner Application and/or disable their Log-in Information in the event of an actual or potential violation of the Agreement, including but not limited to, investigation of suspicious activities, action by authorities, or other legal or regulatory reasons. R&M shall not be liable to Customer for any such suspension of access to the SlatPlanner Application.
3. PAYMENT OF FEES
3.1 Payment. Customer must pay the applicable monthly fees according to the payment terms shown during registration. All payments are non-refundable. If Customer has provided for payment via credit card, payment of the applicable monthly fees will be automatically made and the term extended for another month unless terminated by Customer pursuant to Section 6. If payment is not received by R&M during normal payment processing, Customer’s access to the SlatPlanner Application shall terminate.
4. CUSTOMER RESPONSIBILITIES
4.1 General. Customer will comply, and Customer will use best efforts to cause all End Users to comply, with the provisions of this Agreement, and Customer shall be responsible for the failure of any such End User or other person to comply.
4.2 Required Resources. Except as provided in the Agreement, Customer will provide all equipment required on its premises, connectivity, services, data, subscriptions, security provisions, third party content licenses, troubleshooting of Customer-side systems, operating system software, configurations, and Personnel required for use of the SlatPlanner Application, or otherwise for the proper conduct of Customer’s business. SlatNotes and Sticker Sheets that are recommended for use with the SlatPlanner Application may be separately purchased by Customer and are not provided by or part of this Agreement.
4.3 No Substitute for Professional Decisions. The SlatPlanner Application does not make professional decisions, and is not a substitute for Customer’s Personnel applying professional judgment and analysis. Customer is solely responsible for (i) verifying the accuracy of all information and reports produced by the SlatPlanner Application; (ii) determining data necessary for decision-making by Customer and its respective Personnel; and (iii) determining compliance, and complying, with all Laws and licensing requirements for the operation of Customer’s business.
4.4 End User Security. Customer is responsible for providing and administering user names and passwords for all End Users (“Log-in Information”). Except as authorized to provide to Customer Personnel, Customer must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned End User (if applicable) and may not be shared or transferred without approval from R&M. Customer is responsible for any and all activities that occur under all End Users accounts. Customer agrees to notify R&M immediately of any unauthorized use of End User accounts or any other breach of security. R&M will not be liable for any loss that Customer, or its End Users may incur as a result of someone else using End User passwords or accounts, either with or without the applicable End Users’ knowledge.
5.1. No Use or Disclosure. Recipient will only use Confidential Information as authorized by this Agreement and will not reproduce, disseminate, or disclose Confidential Information to any Third Party, and will only disseminate and disclose Confidential Information to its own Personnel who need to know the Confidential Information for the purposes of this Agreement and are bound by confidentiality obligations at least as restrictive as those in this section 5.1. Recipient will treat all Confidential Information with at least the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. Recipient shall notify Discloser of any breaches of security that result in or are likely to result in disclosure of Discloser’s Confidential Information.
5.2 Required Disclosure. Recipient may disclose Confidential Information: (a)as approved in writing signed by Discloser; (b) as necessary to comply with any Law or valid order of a court or other governmental body; or (c)as necessary to establish the rights of either Party, but only if, in the case of sections 5.2(b) or 5.2(c), Recipient (1) promptly notifies Discloser with the particulars of the required disclosure; and (2) gives Discloser all assistance reasonably required by Discloser to enable Discloser to take available steps to prevent the disclosure or to ensure that disclosure occurs subject to an appropriate obligation of confidence.
5.3 Government Audits of Customer. If any government agency audits R&M as the result of the provision of access and use of the SlatPlanner Application, R&M will cooperate to the extent required subject to its lawful actions to protect R&M Confidential Information. Customer will reimburse R&M on a time and materials basis at then-current hourly rates in connection with any such audit.
6. TERM AND TERMINATION
6.1 Term. This Agreement applies to access and use of the SlatPlanner Application from the effective registration (including receipt of the applicable payment) until the expiration of the applicable License Term, unless terminated earlier under this Agreement.
6.2 Termination without Cause. Either Party can terminate this Agreement for free trial access at any time, and for paid access, Customer can terminate this Agreement at the end of next monthly renewal term, by providing the other Party written notice of non-renewal at least ten (10) days prior to the next scheduled monthly renewal date.
6.3 Termination with Cause.
(a) Material Breach by Either Party. If either Party commits a material breach of this Agreement, the non-breaching Party may give written notice describing the nature and basis of the breach to the breaching Party. If the breach is not cured within thirty (30) days of the notice date, the non-breaching Party may immediately terminate this Agreement, in whole or in part.
(b) Bankruptcy. Each Party may terminate this Agreement (i) immediately upon notice if the other Party ceases to conduct its business, makes a general assignment for the benefit of its creditors, admits publicly its inability to meet its obligations as they come due, voluntarily files for bankruptcy or insolvency, or is the subject of a filing by a Third Party for bankruptcy, insolvency, receivership or similar protection that is not dismissed within forty-five days.
6.4. Effect of Termination. Upon termination of this Agreement, Customer’s rights under this Agreement, including its right to access and use SlatPlanner Application and all related functionality, immediately terminate (except as required by Law).
6.5. Survival. The termination or expiration of this Agreement will not affect any provisions of this Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: Customer Responsibilities, Confidentiality, Term and Termination, Proprietary Rights, Warranty Disclaimers, Limitation of Liability, Indemnification, and General Provisions.
7. PROPRIETARY RIGHTS
7.1 Ownership by R&M. R&M shall own and retain all right, title, and interest in the R&M Technology. By using the SlatPlanner Application, Customer does not gain any ownership in such items.
7.2 Ownership by Customer. R&M does not claim ownership of any Customer Data. Customer, retains ownership of Customer Data.
7.3 Feedback. Unless otherwise agreed upon in writing by the Parties, to the extent that Customer submits to R&M any changes, suggestions, improvements, extensions, or derivative works of any R&M Technology (collectively “Feedback”), Customer hereby assigns all right, title and interest to such Feedback, including all intellectual property embodied within. To the extent such Feedback cannot be assigned, Customer hereby grants to R&M a nonexclusive, worldwide, royalty-free, perpetual and irrevocable license to use such Feedback in any way R&M determines without notice, payment or attribution to Customer.
8. LIMITED WARRANTIES
8.1 General. Each Party represents and warrants that: (a) it is duly organized and in good standing under the Laws of the state of its organization; and (b) it has full authority to execute and perform under this Agreement, and such performance will not breach any agreement to which the Party is bound.
8.2 R&M Represenatation. R&M represents and warrants to Customer that during the applicable License Term(s), R&M will provide access to the SlatPlanner Application.
8.3 Sole Remedy. To the extent permitted by law, Customer’s sole and exclusive remedy and R&M’s sole liability arising out of or in connection with a breach of the representation and warranty in Section 9.2 of this Agreement is limited to, at R&M’s option: (a) R&M correcting the nonconformity within a commercially reasonable period of time; or (b) if correction is not commercially reasonable, a termination of the applicable SlatPlanner Application subscription and a refund of any pre-paid unused fees for the remaining balance of the applicable License Term. Customer must notify R&M of a claim under Section 8.2 within thirty (30) days of the date on which the condition that gives rise to the claim first appeared.
8.4 Customer Representation. Customer represents and warrants that: (a) the Customer hardware, software, and network that Customer uses to access the SlatPlanner Application will not contain any Viruses that may damage, detrimentally interfere with, surreptitiously intercept, expropriate, or make any other unauthorized transfer, alteration or use of the SlatPlanner Application, adversely impact the operation or availability by any facility used to provide the SlatPlanner Application , or any other computing systems, data or information of R&M, its hosting services provider or other third party; (b) unless otherwise instructed in writing by R&M, Customer will use a current, industry standard or better Virus scanning and detection program, running up-to-date virus definitions; (c) it has the necessary consents and authorizations to provide the Customer Data to R&M for use as contemplated herein; and (d) that only authorized End Users shall be permitted to access the SlatPlanner Application.
8.5 Customer Representation on Signatory Authority. Customer further represents and warrants that the person registering to use the SlatPlanner Application has the full power and authority to enter into the Agreement and to agree to all terms and conditions contained therein.
9. WARRANTY DISCLAIMERS
9.1 Implied Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, R&M PROVIDES THE SLATPLANNER APPLICATION ON AN “AS-IS” AND “AS AVAILABLE” BASIS. OTHER THAN CONTAINED IN THIS AGREEMENT, R&M DISCLAIMS AND MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING REPRESENTATIONS, GUARANTEES OR WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULTS OR OUTPUT, SECURITY, OR IMPLIED BY THE PROVISIONS OF ANY LAWS THAT BY THEIR TERMS CAN BE DISCLAIMED (SUCH AS THE UNIFORM COMMERCIAL CODE OR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT), OR ANY DESCRIPTION PROVIDED FOR THE SLATPLANNER APPLICATION, OR ANY SAMPLE OR MODEL PRESENTED TO CUSTOMER. R&M DOES NOT GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR ACCURACY OF THE SLATPLANNER APPLICATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY R&M SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF R&M’S OBLIGATIONS HEREUNDER. IF SUCH PROVISIONS CANNOT BE EXCLUDED AND DISCLAIMED, THEN THE PROVISIONS OF THIS AGREEMENT WILL CONTROL TO THE MAXIMUM EXTENT PERMITTED.
10. LIMITATION OF LIABILITY
10.1 R&M shall not be liable for loss, injury or damage of any kind to any person or entity resulting from any use, condition, performance, defect or failure in the SlatPlanner Application. Customer releases and waives all claims, damages, liabilities, costs and expenses against R&M, and its affiliates, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing (“R&M Group”), arising out of Customer’s use of the SlatPlanner Application. Without limiting the foregoing, in no event will R&M’s maximum liability exceed the fees paid by Customer to R&M for access to the SlatPlanner Application over the preceding twelve (12) months for the Project giving rise to any claim or liability.
10.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL R&M BE LIABLE FOR ANY LOST OR CORRUPTED DATA, LOSS OF GOODWILL, REVENUE, DOWNTIME, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, EXEMPLARY OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, INCLUDING NEGLIGENCE. IF SUCH PROVISIONS CANNOT BE EXCLUDED AND DISCLAIMED, THEN THE PROVISIONS OF THIS AGREEMENT WILL CONTROL TO THE MAXIMUM EXTENT PERMITTED.
10.3 The limitations in this section apply regardless of the form or source of Claim or Loss, whether or not they may cause this Agreement or any remedy available to a Party to fail of its essential purpose, whether the Claim or Loss was foreseeable, and whether the applicable Party has been advised of the possibility of the Claim or Loss.
11.1 Duty to Indemnify. Customer shall defend, indemnify and hold R&M harmless from any and all Third Party claims arising out of or related to R&M’s receipt, use, or processing of Customer Data provided by End Users.
12. GENERAL PROVISIONS
12.1 Equitable Relief. Actual or threatened breach of certain sections of this Agreement (such as, without limitation, provisions on intellectual property (including ownership), license, privacy, data protection and confidentiality) may cause immediate, irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone. Either Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
12.2 Notices. Any notice given under this Agreement must be in writing and, other than service of process, may be delivered personally or by overnight mail (e.g., FedEx, DHL, etc.) or e-mail to the e-mail provided during registration, and notices delivered personally or via overnight mail will be effective upon delivery.
12.3 Governing Law, Venue. This Agreement is governed by and construed under the Laws of the State of Alabama without regard to any conflict of law rules or principles. Any action seeking to enforce any provision of, or, directly or indirectly arising out of or in any way relating to this Agreement, shall be brought exclusively in any state or federal court located in the State of Alabama, and each of the parties hereby irrevocably consent to the exclusive jurisdiction of such courts in any such action and irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any such action in any such court or that any such action brought in any such court has been brought in an inconvenient forum. United Nations Convention on Contracts for the International Sale of Goods will not apply.
12.4 Waiver. Neither Party’s waiver of the breach of any provision constitutes a waiver of that provision in any other instance.
12.5 Relationship of Parties. R&M is an independent contractor, and nothing in this Agreement is intended to constitute an employment, partnership, joint venture, fiduciary, trust or agency relationship between the Parties, or authorize Customer or R&M to enter into any commitment or agreement with any Third Party that is binding on the other Party.
12.6 Assignment; Binding Effect; Subcontractors. This Agreement is personal to Customer, and neither party may assign this Agreement or any rights or duties hereunder without the advance written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement or its rights and/or duties to its affiliates or to its successor in the event of a sale of all or substantially all of its assets, voting securities, or the assets or business related to the access and use of the SlatPlanner Application provided under this Agreement. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties’ respective legal representatives, and permitted transferees, successors, and assigns.
12.7 Force Majeure. A Party’s failure to perform its obligations under this Agreement, other than the payment of money, is excused to the extent that the failure is caused by an event outside its reasonable control, including an act of God, act or threat of terrorism, shortage of materials, strike or labor action, war or threat of military or significant police action, natural disaster, failure of third party suppliers, denial of service attacks and other malicious conduct, utility failures, power outages, governmental acts, orders, or restrictions, or other cause beyond its reasonable control.
12.8 Severability. If any term of this Agreement is held invalid or unenforceable for any reason, the remainder of the term and this Agreement will continue in full force and effect.
12.9 Publicity. R&M may publicly identify Customer as R&M’s customer.
12.10. Third Party Beneficiaries. The Parties agree and acknowledge that this Agreement is not made for the benefit of any Third Party and nothing in this Agreement, whether expressed or implied, is intended to confer upon any Third Party any rights or remedies under or by reason of this Agreement, nor is anything in this Agreement intended to relieve or discharge the liability of either Party hereto, nor shall any provision hereof give any entity any right of subrogation against or action over or against either Party.
12.11 U.S. Government Licensing. For US Government end users: Customer acknowledges that the SlatPlanner Application is a “Commercial Item(s),” as that term is defined at 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as the terms are used in 48 C.F.R. section 12.212 or 48 C.F.R. section 227.7202, as applicable. Customer agrees, consistent with 48 C.F.R. section 12.212 or 48 C.F.R. sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (A) only as Commercial Items; and (B) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.
12.12 Export Rules. Customer acknowledges that the SlatPlanner Application may be subject to the U.S. Export Administration Regulations and other export laws and regulations, and Customer will comply with them.
12.13 License Compliance. During the term of this Agreement and for one (1) year thereafter, Customer shall keep complete and accurate books and records relating to use of SlatPlanner Application and any fees payable under this Agreement. R&M may, at its expense and no more than twice per year, appoint its own Personnel or an independent third party (or both) to inspect such records to verify that use, of the SlatPlanner Application complies with the terms of this Agreement. Any verification may include an onsite audit conducted at Customer’s relevant places of business upon 15 days prior notice, during regular business hours, and will not unreasonably interfere with Customer’s business activities.