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 BUILDFORE APPLICATIONS under this BUILDFORESubscription 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 BUILDFOREAPPLICATIONS related to the Project.
1.5 “Confidential Information” means aDiscloser’s non-public information (including R&M Technology, customerlists, employee lists, etc.) whether or not marked or identified asconfidential. 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 Technologyand non-public Customer Data. Confidential Information does not includeinformation that: (a) is or becomes generally publicly available at orafter the time of disclosure through no fault of Recipient; (b) was known toRecipient free of any confidentiality obligations, before its disclosure byDiscloser; (c) becomes known to Recipient free of any confidentialityobligations from a source other than Discloser; or (d) is independently developed by Recipient without use of ConfidentialInformation.
1.6 “End User(s)” means each individualPersonnel of Customer who is authorized by Customer and this Agreement to useany portion of BUILDFORE APPLICATIONS.
1.7 “Law” means those applicable federal andstate statutes, regulations, codes, ordinances, agency directives, bindingcourt orders and other binding government requirements.
1.8 “License Term” means the consecutiveperiod for which Customer pays the applicable monthly fee for access to BUILDFOREAPPLICATIONS 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’sofficers, employees and contractors.
1.12 “Project” means the interrelated tasks and activitiesrelated to a single construction project identified when Customer registered touse and access BUILDFORE APPLICATIONS.
1.13 “R&M” or “Company” means Robins & Morton, Inc.
1.14 “R&M Technology” means BUILDFORE APPLICATIONS, includingall 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 propertyrights throughout the world included therein, as well as any derivatives,modifications, improvements, enhancements, or extensions of the above, wheneverdeveloped. R&M Technology also includes the SlatNotes and Sticker Sheetsthat are recommended for use with BUILDFORE APPLICATIONS.
1.15 “BUILDFORE” means any and all software application programwhich is made accessible for Customer to use under the terms of this Agreement.BUILDFORE includes any updates, enhancements, and new features to thefunctionality of BUILDFORE APPLICATIONS incorporated by R&M, all of whichare subject to this Agreement.
1.16 “Third Party” means any person or entity other than R&Mor Customer (including Customer’s Personnel).
1.17 “Virus” means viruses, worms, trap doors, Easter eggs, timebombs, cancel bots, trojans and other malware or malicious code intended tocause or that cause computers or systems to fail to act properly or to functionin an unintended manner or permit unintended access to such computers orsystems. License keys and other functionality intentionally inserted in BUILDFOREby R&M are not Viruses.
2.1 Grant. Subject to Customer’s compliance with the terms of the Agreement, R&Mgrants Customer, during the License Term and solely for the Project, a limited,non-exclusive, terminable, non-transferable license to access and use BUILDFOREAPPLICATIONS for its internal use by End Users. All rights notexpressly granted to Customer are reserved to R&M, and all uses not expresslypermitted hereunder are prohibited. Customer may authorize AffiliatedProvider Personnel to be Licensed Users.
2.2 Limitations onAccess and Use. Exceptto the limited extent expressly permitted in this Agreement, Customer will not:(a) sell, transfer, lease, assign, sublicense, encumber, or distribute any of BUILDFOREAPPLICATIONS; (b) use BUILDFORE APPLICATIONS as a service bureau; (c) permitany End User or other person to access or use BUILDFORE APPLICATIONS usinganother 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 ordelete data in BUILDFORE APPLICATIONS database by any method other than directdata entry through BUILDFORE APPLICATIONS; (e) use BUILDFORE APPLICATIONS toprocess anything other than Customer Data; (f) use BUILDFORE APPLICATIONS forany purpose that is unlawful or prohibited by the Agreement; (g) use BUILDFOREAPPLICATIONS in any manner that could damage, disable, overburden, or impairany R&M server, or the network connected to R&M, or interfere with anyother party’s use and enjoyment of BUILDFORE APPLICATIONS; (h) attempt to gainunauthorized access to any part of BUILDFORE APPLICATIONS, 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 anymaterials, information, or functionality through any means not intentionallymade available through BUILDFORE APPLICATIONS; (j) copy, reproduce, alter,adapt, translate, modify, transmit, perform, create derivative works of,sub-license, distribute, or circulate BUILDFORE APPLICATIONS, or any associatedapplications, tools, or data thereof, except to the extent permitted under theLaw; (k) disassemble, decompile, reverse engineer, or otherwise attemptto discover the source code in BUILDFORE APPLICATIONS, or use a robot, spider,or any similar device to copy or catalog any materials or information madeavailable through BUILDFORE APPLICATIONS, except to the extent permitted underthe Law; and (l) take any actions, whether intentional or unintentional, thatmay circumvent, disable, damage, or impair BUILDFORE APPLICATIONS control orsecurity systems, or allow or assist a Third Party to do so.
2.3 Suspension ofService. R&M may at any time suspend (or require thatCustomer suspend) the access of End Users to BUILDFORE APPLICATIONS and/ordisable their Log-in Information in the event of an actual or potentialviolation of the Agreement, including but not limited to, investigation ofsuspicious activities, action by authorities, or other legal or regulatoryreasons. R&M shall not be liable to Customer for any such suspensionof access to BUILDFORE APPLICATIONS.
3. PAYMENT OF FEES
3.1 Payment. Customer must pay the applicable monthly fees according to the paymentterms shown during registration. All payments are non-refundable. If Customer has provided for payment via credit card, payment of theapplicable monthly fees will be automatically made and the term extended foranother month unless terminated by Customer pursuant to Section 6. Ifpayment is not received by R&M during normal payment processing, Customer’saccess to BUILDFORE APPLICATIONS shall terminate.
4.1 General. Customer will comply, and Customer will use best efforts to cause all EndUsers to comply, with the provisions of this Agreement, and Customer shall beresponsible for the failure of any such End User or other person to comply.
4.2 RequiredResources. Except as provided in the Agreement, Customer willprovide 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 BUILDFORE APPLICATIONS, orotherwise for the proper conduct of Customer’s business. SlatNotesand Sticker Sheets that are recommended for use with BUILDFORE APPLICATIONS maybe separately purchased by Customer and are not provided by or part of thisAgreement.
4.3 No Substitutefor Professional Decisions. BUILDFORE APPLICATIONS does not makeprofessional decisions, and is not a substitute for Customer’s Personnelapplying professional judgment and analysis. Customer is solelyresponsible for (i) verifying the accuracy of all information and reportsproduced by BUILDFORE APPLICATIONS; (ii) determining data necessary fordecision-making by Customer and its respective Personnel; and (iii) determiningcompliance, and complying, with all Laws and licensing requirements for theoperation of Customer’s business.
4.4 End UserSecurity. Customer is responsible for providing andadministering user names and passwords for all End Users (“Log-inInformation”). Except as authorized to provide to Customer Personnel,Customer must keep all Log-In Information strictly confidential. Log-InInformation may be used only by the assigned End User (if applicable) and maynot be shared or transferred without approval from R&M. Customer isresponsible for any and all activities that occur under all End Users accounts. Customer agrees to notify R&M immediately of any unauthorized use ofEnd User accounts or any other breach of security. R&M will not beliable for any loss that Customer, or its End Users may incur as a result ofsomeone else using End User passwords or accounts, either with or without theapplicable End Users’ knowledge.
5.1. No Use orDisclosure. Recipient will only use Confidential Information asauthorized by this Agreement and will not reproduce, disseminate, or discloseConfidential Information to any Third Party, and will only disseminate anddisclose Confidential Information to its own Personnel who need to know theConfidential Information for the purposes of this Agreement and are bound byconfidentiality obligations at least as restrictive as those in this section5.1. Recipient will treat all Confidential Information with at least thesame degree of care as it treats its own information of similar sensitivity,but never with less than reasonable care. Recipient shall notify Discloser ofany breaches of security that result in or are likely to result in disclosureof Discloser’s Confidential Information.
5.2 RequiredDisclosure. Recipient may disclose Confidential Information:(a)as approved in writing signed by Discloser; (b) as necessary to comply withany Law or valid order of a court or other governmental body; or (c)asnecessary to establish the rights of either Party, but only if, in the case ofsections 5.2(b) or 5.2(c), Recipient (1) promptly notifies Discloser with theparticulars of the required disclosure; and (2) gives Discloser all assistancereasonably required by Discloser to enable Discloser to take available steps toprevent the disclosure or to ensure that disclosure occurs subject to anappropriate obligation of confidence.
5.3 GovernmentAudits of Customer. If any government agency audits R&M asthe result of the provision of access and use of BUILDFORE APPLICATIONS,R&M will cooperate to the extent required subject to its lawful actions toprotect R&M Confidential Information. Customer will reimburse R&Mon a time and materials basis at then-current hourly rates in connection withany such audit.
6. TERM ANDTERMINATION
6.1 Term. This Agreement applies to access and use of BUILDFORE APPLICATIONS fromthe effective registration (including receipt of the applicable payment) untilthe expiration of the applicable License Term, unless terminated earlier underthis Agreement.
6.2 Terminationwithout Cause. Either Party can terminate this Agreement for freetrial access at any time, and for paid access, Customer can terminate thisAgreement at the end of next monthly renewal term, by providing the other Partywritten notice of non-renewal at least ten (10) days prior to the nextscheduled monthly renewal date.
6.3 Terminationwith Cause.
(a) Material Breach by Either Party. If eitherParty commits a material breach of this Agreement, the non-breaching Party maygive written notice describing the nature and basis of the breach to thebreaching Party. If the breach is not cured within thirty (30) days ofthe notice date, the non-breaching Party may immediately terminate thisAgreement, in whole or in part.
(b) Bankruptcy. Each Party may terminate thisAgreement (i) immediately upon notice if the other Party ceases to conduct itsbusiness, makes a general assignment for the benefit of its creditors, admitspublicly its inability to meet its obligations as they come due, voluntarilyfiles for bankruptcy or insolvency, or is the subject of a filing by a ThirdParty for bankruptcy, insolvency, receivership or similar protection that isnot dismissed within forty-five days.
6.4. Effect ofTermination. Upon termination of this Agreement, Customer’srights under this Agreement, including its right to access and use BUILDFOREand all related functionality, immediately terminate (except as required byLaw).
6.5. Survival. The termination or expiration of this Agreement will not affect anyprovisions of this Agreement which by their nature survive termination orexpiration, including the provisions that deal with the following subjectmatters: Customer Responsibilities, Confidentiality, Term and Termination,Proprietary Rights, Warranty Disclaimers, Limitation of Liability,Indemnification, and General Provisions.
7.1 Ownership byR&M. R&M shall own and retain all right, title, andinterest in the R&M Technology. By using BUILDFORE APPLICATIONS,Customer does not gain any ownership in such items.
7.2 Ownership byCustomer. 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 extentthat 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 suchFeedback cannot be assigned, Customer hereby grants to R&M a nonexclusive,worldwide, royalty-free, perpetual and irrevocable license to use such Feedbackin any way R&M determines without notice, payment or attribution toCustomer.
8.1 General. Each Party represents and warrants that: (a) it is duly organized and ingood standing under the Laws of the state of its organization; and (b) it hasfull authority to execute and perform under this Agreement, and suchperformance will not breach any agreement to which the Party is bound.
8.2 R&MRepresenatation. R&M represents and warrants to Customerthat during the applicable License Term(s), R&M will provide access to BUILDFOREAPPLICATIONS.
8.3 Sole Remedy. Tothe extent permitted by law, Customer’s sole and exclusive remedy and R&M’ssole liability arising out of or in connection with a breach of therepresentation and warranty in Section 9.2 of this Agreement is limited to, atR&M’s option: (a) R&M correcting the nonconformity within acommercially reasonable period of time; or (b) if correction is notcommercially reasonable, a termination of the applicable BUILDFORE subscriptionand a refund of any pre-paid unused fees for the remaining balance of theapplicable License Term. Customer must notify R&M of a claim underSection 8.2 within thirty (30) days of the date on which the condition thatgives rise to the claim first appeared.
8.4 CustomerRepresentation. Customer represents and warrants that: (a) theCustomer hardware, software, and network that Customer uses to access BUILDFOREAPPLICATIONS will not contain any Viruses that may damage, detrimentallyinterfere with, surreptitiously intercept, expropriate, or make any otherunauthorized transfer, alteration or use of BUILDFORE APPLICATIONS, adverselyimpact the operation or availability by any facility used to provide BUILDFOREAPPLICATIONS , or any other computing systems, data or information of R&M,its hosting services provider or other third party; (b) unless otherwiseinstructed in writing by R&M, Customer will use a current, industrystandard or better Virus scanning and detection program, running up-to-datevirus definitions; (c) it has the necessary consents and authorizations to providethe Customer Data to R&M for use as contemplated herein; and (d) that onlyauthorized End Users shall be permitted to access BUILDFORE APPLICATIONS.
8.5 CustomerRepresentation on Signatory Authority. Customer furtherrepresents and warrants that the person registering to use BUILDFOREAPPLICATIONS has the full power and authority to enter into the Agreement andto agree to all terms and conditions contained therein.
9.1 ImpliedWarranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPTFOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, R&M PROVIDES BUILDFOREAPPLICATIONS ON AN “AS-IS” AND “AS AVAILABLE” BASIS. OTHER THAN CONTAINEDIN THIS AGREEMENT, R&M DISCLAIMS AND MAKES NO OTHER REPRESENTATION ORWARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING REPRESENTATIONS,GUARANTEES OR WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESSFOR A PARTICULAR PURPOSE, ACCURACY, RESULTS OR OUTPUT, SECURITY, OR IMPLIED BYTHE PROVISIONS OF ANY LAWS THAT BY THEIR TERMS CAN BE DISCLAIMED (SUCH AS THEUNIFORM COMMERCIAL CODE OR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT),OR ANY DESCRIPTION PROVIDED FOR BUILDFORE APPLICATIONS, OR ANY SAMPLE OR MODELPRESENTED TO CUSTOMER. R&M DOES NOT GUARANTEE OR MAKE ANYREPRESENTATIONS REGARDING THE USE OR ACCURACY OF BUILDFORE APPLICATIONS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY R&M SHALL CREATE AWARRANTY OR IN ANY WAY INCREASE THE SCOPE OF R&M’S OBLIGATIONS HEREUNDER. IF SUCH PROVISIONS CANNOT BE EXCLUDED AND DISCLAIMED, THEN THE PROVISIONSOF THIS AGREEMENT WILL CONTROL TO THE MAXIMUM EXTENT PERMITTED.
10. LIMITATION OFLIABILITY
10.1 R&M shall not be liable for loss, injury or damage ofany kind to any person or entity resulting from any use, condition,performance, defect or failure in BUILDFORE APPLICATIONS. Customerreleases and waives all claims, damages, liabilities, costs and expensesagainst R&M, and its affiliates, agents or content providers, and thedirectors, trustees, officers, shareholders, employees, agents andrepresentatives of each of the foregoing (“R&M Group”), arising out ofCustomer’s use of BUILDFORE APPLICATIONS. Without limiting the foregoing,in no event will R&M’s maximum liability exceed the fees paid by Customerto R&M for access to BUILDFORE APPLICATIONS 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 SHALLR&M BE LIABLE FOR ANY LOST OR CORRUPTED DATA, LOSS OF GOODWILL, REVENUE,DOWNTIME, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHERSPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, EXEMPLARY OR INDIRECTDAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, INCLUDINGNEGLIGENCE. IF SUCH PROVISIONS CANNOT BE EXCLUDED AND DISCLAIMED, THENTHE PROVISIONS OF THIS AGREEMENT WILL CONTROL TO THE MAXIMUM EXTENT PERMITTED.
10.3 The limitations in this section apply regardless of the formor source of Claim or Loss, whether or not they may cause this Agreement or anyremedy available to a Party to fail of its essential purpose, whether the Claimor Loss was foreseeable, and whether the applicable Party has been advised ofthe possibility of the Claim or Loss.
11.1 Duty toIndemnify. Customer shall defend, indemnify and hold R&Mharmless from any and all Third Party claims arising out of or related toR&M’s receipt, use, or processing of Customer Data provided by End Users.
12.1 EquitableRelief. Actual or threatened breach of certain sections of thisAgreement (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 cannotbe remedied by the payment of damages alone. Either Party will be entitled toseek preliminary and permanent injunctive relief and other equitable relief forany such breach.
12.2 Notices. Any notice given under this Agreement must be in writing and, other thanservice 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, andnotices delivered personally or via overnight mail will be effective upondelivery.
12.3 Governing Law,Venue. This Agreement is governed by and construed under theLaws of the State of Alabama without regard to any conflict of law rules orprinciples. Any action seeking to enforce any provision of, or, directlyor indirectly arising out of or in any way relating to this Agreement, shall bebrought exclusively in any state or federal court located in the State ofAlabama, and each of the parties hereby irrevocably consent to the exclusivejurisdiction of such courts in any such action and irrevocably waives, tothe fullest extent permitted by Law, any objection that it may now or hereafterhave to the laying of the venue of any such action in any such court or thatany such action brought in any such court has been brought in an inconvenientforum. United Nations Convention on Contracts for the International Saleof Goods will not apply.
12.4 Waiver. Neither Party’s waiver of the breach of any provision constitutes awaiver of that provision in any other instance.
12.5 Relationship ofParties. R&M is an independent contractor, and nothing inthis Agreement is intended to constitute an employment, partnership, jointventure, fiduciary, trust or agency relationship between the Parties, orauthorize Customer or R&M to enter into any commitment or agreement withany Third Party that is binding on the other Party.
12.6 Assignment;Binding Effect; Subcontractors. This Agreement is personal toCustomer, and neither party may assign this Agreement or any rights or dutieshereunder without the advance written consent of the other Party.Notwithstanding the foregoing, either Party may assign this Agreement or itsrights and/or duties to its affiliates or to its successor in the event of asale of all or substantially all of its assets, voting securities, or theassets or business related to the access and use of BUILDFORE APPLICATIONSprovided under this Agreement. Subject to the foregoing, this Agreementwill be binding upon and inure to the benefit of the Parties’ respective legalrepresentatives, and permitted transferees, successors, and assigns.
12.7 Force Majeure. A Party’s failure to perform itsobligations under this Agreement, other than the payment of money, is excusedto the extent that the failure is caused by an event outside its reasonablecontrol, including an act of God, act or threat of terrorism, shortage ofmaterials, strike or labor action, war or threat of military or significantpolice action, natural disaster, failure of third party suppliers, denial ofservice attacks and other malicious conduct, utility failures, power outages,governmental acts, orders, or restrictions, or other cause beyond itsreasonable control.
12.8 Severability. If any term of this Agreement is held invalid or unenforceable for anyreason, the remainder of the term and this Agreement will continue in fullforce and effect.
12.9 Publicity. R&M may publicly identify Customer as R&M’s customer.
12.10. Third PartyBeneficiaries. The Parties agree and acknowledge that thisAgreement 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 anyrights or remedies under or by reason of this Agreement, nor is anything inthis Agreement intended to relieve or discharge the liability of either Partyhereto, nor shall any provision hereof give any entity any right of subrogationagainst or action over or against either Party.
12.11 U.S. GovernmentLicensing. For US Government end users: Customer acknowledgesthat BUILDFORE APPLICATIONS is a “Commercial Item(s),” as that term is definedat 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and“Commercial Computer Software Documentation,” as the terms are used in 48C.F.R. section 12.212 or 48 C.F.R. section 227.7202, as applicable. Customeragrees, consistent with 48 C.F.R. section 12.212 or 48 C.F.R. sections227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Softwareand Commercial Computer Software Documentation are being licensed to U.S.Government end users (A) only as Commercial Items; and (B) with only thoserights as are granted to all other end users pursuant to the terms andconditions herein. Unpublished rights reserved under the copyright laws of theUnited States.
12.12 Export Rules. Customer acknowledges that BUILDFORE APPLICATIONS may be subject to theU.S. Export Administration Regulations and other export laws and regulations,and Customer will comply with them.
12.13 LicenseCompliance. During the term of this Agreement and for one (1)year thereafter, Customer shall keep complete and accurate books and recordsrelating to use of BUILDFORE and any fees payable under this Agreement. R&Mmay, at its expense and no more than twice per year, appoint its own Personnelor an independent third party (or both) to inspect such records to verify thatuse, of BUILDFORE APPLICATIONS complies with the terms of this Agreement. Anyverification may include an onsite audit conducted at Customer’s relevantplaces of business upon 15 days prior notice, during regular business hours,and will not unreasonably interfere with Customer’s business activities.