Master Subscription Agreement
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU AND USER WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any User to access or use a Service, You agree to be bound by this Agreement as of the date of such access or use of the Service (the “Effective Date”). If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Buildworks that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use or authorize any use of the Services.
The purpose of this Agreement is to establish the terms and conditions under which Subscriber may purchase Buildworks’ Services and Consulting Services as described in an Order Form or in a Statement of Work signed by You.
In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control.
General Terms and Conditions
SECTION 1. ACCESS TO THE SERVICES
1.1 Service. We will make the Services and Your Service Data available to You pursuant to this Agreement and the applicable Order Form(s) and Documentation in accordance with Your Service Plan. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (a) during Planned Downtime (of which We will give advance notice via Our Site or to the Account owner); and (b) Force Majeure Events.
1.2 Support. We will, at no additional charge, provide applicable standard customer support for the Services to You as detailed on the applicable Site and Documentation, and upgraded support, if purchased.
1.3 Modifications. You acknowledge that Buildworks may modify the features and functionality of the Services during the Subscription Term. Buildworks shall provide You with commercially reasonable advance notice of any deprecation of any material feature or functionality.
1.4 Additional Features. We will notify You of applicable Supplemental Terms and/or alternate agreement prior to Your activation of any Additional Features. The activation of any Additional Features by You in Your Account will be considered acceptance of the applicable Supplemental Terms or alternate agreement where applicable.
1.5 Extension of Rights to Affiliates. You may extend Your rights, benefits and protections provided herein to Your Affiliates and to contractors or service providers acting on Your or Your Affiliates’ behalf, provided that You remain responsible for Your and their compliance hereunder.
SECTION 2. USE OF THE SERVICES
2.1 Login Management. Access to and use of the Services is restricted to the specified number of individual Users permitted under Your subscription to the applicable Service. You agree and acknowledge that an User Login cannot be shared or used by more than one (1) individual. However, User Logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services. You and Your Users are responsible for maintaining the confidentiality of all User Login information for Your Account. Absent a written license from Buildworks expressly stating otherwise, You agree and acknowledge that You may not use the Services, including but not limited to the API, to circumvent the requirement for an individual User Login for each individual who (a) leverages the Services; (b) Processes data; or (c) Processes data originating from a Non-Buildworks Service that provides functionality similar to functionality provided by the Services and which would, pursuant to this Agreement, require an individual User Login if utilizing the Services for such interaction. Further, Subscriber shall not use the API or any Software in such a way to circumvent applicable Service Plan restrictions or User licensing restrictions that are enforced in the Service user interface. Should Buildworks discover that Your use of a Buildworks Service is not in compliance with this Agreement or the Service Plan features and limitations on Our Site, Buildworks reserves the right to charge You, and You hereby agree to pay for said usage in addition to other remedies available to Us.
2.2 Compliance. As between You and Buildworks, You are responsible for compliance with the provisions of this Agreement by Users and for any and all activities that occur under Your Account, which Buildworks may verify from time to time. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Services is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Users.
2.3 Content and Conduct. In addition to complying with the other terms, conditions and restrictions set forth in this Agreement, You agree to the Buildworks User Conduct Policy, which is hereby incorporated into this Agreement. Further, in Your use of the Services You agree not to (a) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (b) falsely imply any sponsorship or association with Buildworks or the Buildworks Group; (c) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (d) attempt to bypass or break any security or rate limiting mechanism on any of the Services or use the Services in any manner that interferes with or disrupts the integrity, security or performance of the Services and its components; (e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (f) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (g) launch or facilitate, whether intentionally or unintentionally, a denial of service attack on any of the Services or any other conduct that materially and adversely impacts the availability, reliability, or stability of the Services.
2.4 System Requirements. A high-speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, browser software that supports protocols used by Buildworks, including the Transport Layer Security (TLS) protocol or other protocols accepted by Buildworks, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You or Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Buildworks. We assume no responsibility for the reliability or performance of any connections as described in this Section.
2.5 Internal Business Purposes Only. Unless otherwise authorized by Buildworks in this Agreement or expressly agreed to otherwise in writing by Buildworks, You may not use the Services in any manner where You act as a service bureau or to provide any outsourced business process services on behalf of more than one (1) third party (other than Affiliates) through a single Account. Accordingly, You agree not to license, sublicense, sell, outsource, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or resell the Services to any third party, other than authorized Users in furtherance of Your internal business purposes as expressly permitted by this Agreement, unless expressly agreed to otherwise in writing by Buildworks. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Buildworks from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in accordance with this Agreement.
2.6 No Competitive Access. You may not access the Services if You are a direct competitor of the Buildworks Group, except with Buildworks’ express prior written consent. You may not access the Services for competitive purposes.
SECTION 3. TERM, CANCELLATION AND TERMINATION
3.1 Term. Unless Your Account and subscription to a Service is terminated in accordance with the terms of this Agreement or unless otherwise provided for in an Order Form (a) Your subscription to a Service (including any and all Deployed Associated Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term and (b) the Subscription Charges applicable to Your subsequent Subscription Term shall be Our standard Subscription Charges for the applicable Service Plan and Deployed Associated Services at the time such subsequent Subscription Term commences.
3.2 Cancellation. Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, no less than thirty (30) days prior to the end of such Subscription Term.
3.3 Mutual Termination for Cause. A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such written notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this Section, We will refund You any prepaid fees covering the remainder of the Subscription Terms of the effective date of termination. If this Agreement is terminated by Us in accordance with this Section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will Our termination for cause relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
3.4 Payment Upon Termination. Except for Your termination under Section 3.3, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term, or if We terminate or cancel Your Account pursuant to Section 3.3, in addition to any other amounts You may owe Buildworks, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term.
3.5 No Refunds. Except for Your termination rights under Section 3.3, if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then current Subscription Term, no refunds or credits for Subscription Charges or other fees or payments will be provided to You.
3.6 Export of Service Data. For thirty (30) days after the effective date of termination or expiration of this Agreement, upon Your request, We will make Service Data available to You for export or download as provided in the Documentation. Thereafter, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, We will, unless prohibited by law or legal order, delete Your Service Data in Our Services in accordance with Our Data Deletion Policy.
SECTION 4. BILLING, PLAN MODIFICATIONS AND PAYMENTS
4.1 Payment and Billing. All Subscription Charges are due in full upon commencement of Your Subscription Term, or, with respect to a Deployed Associated Service, at the time such Deployed Associated Service is purchased, subscribed to or otherwise deployed, unless otherwise expressly set forth in this Agreement, an Order Form, a Statement of Work, or in Supplemental Terms, or as otherwise agreed for Usage Charges. You are responsible for providing valid and current payment information and You agree to promptly update your Account information, including payment information, with any changes that may occur (for example, a change in Your billing address or credit card expiration date). If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within five (5) business days of Our notice to You that payment is delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You and Users.
4.2 Upgrades. If You choose to upgrade Your Service Plan or increase the number of Users authorized to access and use a Service during Your Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the remaining Subscription Term. In any future Subscription Term, Your Subscription Charges will reflect any such upgrades.
4.3 Downgrades. You may not downgrade Your Service Plan or reduce the number of Users during Your Subscription Term. If You desire to downgrade Your Service Plan or reduce the number of Users under any Service Plan for a subsequent Subscription Term, You must provide Buildworks with thirty (30) days advance written notice prior to the end of Your then current Subscription Term. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Buildworks does not accept any liability for such loss.
4.4 Taxes. Unless otherwise stated, Our charges do not include any Taxes. You are responsible for paying Taxes except those assessable against the Buildworks Group measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
4.5 Payment User. If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). Payments made by credit card, debit card or certain other payment instruments for the Buildworks Service are billed and processed by Buildworks’ Payment User. You hereby authorize the Payment User to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services, and for periodic Subscription Charges applicable to Deployed Associated Services to which You subscribe until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize Buildworks and the Payment User to charge Your credit card or other payment instrument to establish prepaid credit. The Account owner will receive a receipt upon each acceptance of payment by the Payment User, or they may obtain a receipt from within the Services to track subscription status. To the extent the Payment User is not Buildworks, the Payment User is acting solely as a billing and processing agent for and on behalf of Buildworks and shall not be construed to be providing the applicable Service. The Payment User uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment User.
4.6 Payment Portals. If You mandate Buildworks use a vendor payment portal or compliance portal which charges Buildworks a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, You shall be invoiced by Buildworks for, and You are obligated to pay, the cost of this fee.
SECTION 5. CONFIDENTIAL INFORMATION
5.1 Each Party will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 5 shall control over any non-disclosure agreement by and between the Parties and any such non-disclosure agreement shall have no further force or effect with respect to the exchange of Confidential Information after the execution of this Agreement. To be clear, any exchange of Confidential Information prior to the execution of this Agreement shall continue to be governed by any such non-disclosure agreement.
SECTION 6. OWNERSHIP AND SECURITY OF SERVICE DATA
6.1 Ownership of Service Data. Subscriber shall retain ownership rights to all Service Data Processed under the terms of this Agreement.
6.2 No Sale of Service Data. Buildworks will never sell, rent, or lease Your Service Data to any third party. We will not share Your Service Data with third parties, except as permitted by this Agreement and in order to provide, secure and support the Services.
6.3 Safeguards. The Buildworks Group will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data for Enterprise Services in accordance with the Enterprise Security Measures described at “How We Protect Your Service Data (Enterprise Services)”; for Innovation Services in accordance with the Innovation Security Measures described at “How We Protect Your Service Data (Innovation Services)”; as well as in accordance with Supplemental Terms for any Deployed Associated Services, as applicable. The Buildworks Group’s compliance with the Enterprise Security Measures or the Innovation Security Measures, each as applicable, shall be deemed compliance with the Buildworks’ Group’s obligations to protect Service Data as set forth in the Agreement.
SECTION 7. PRIVACY PRACTICES
7.1 Subscriber as Data Controller. To the extent Service Data constitutes Personal Data, the Parties agree that You shall be deemed to be the Data Controller, and the relevant entity in the Buildworks Group shall be deemed to be the Data Processor, as those terms are understood under the Applicable Data Protection Law. We explain how We process Service Data in our role as Data Processor in our Data Processing Agreement (see Section 7.4 below).
7.2 Hosting and Processing. Unless otherwise specifically agreed to in writing by Buildworks, Service Data may be hosted by the Buildworks Group, or their respective authorized third-party service providers, in the United States, the EEA or other locations around the world. In providing the Services, Buildworks will engage entities within the Buildworks Group and other authorized service providers to Process Service Data, including and without limitation, any Personal Data within Service Data pursuant to this Agreement within the EEA, the United States and in other countries and territories.
7.3 Transfer of Personal Data. To the extent that Personal Data within Service Data originates from an User in the EEA, as further described in our DPA, We will ensure that, pursuant to Applicable Data Protection Law, if Personal Data within Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), then such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 46 GDPR (or its equivalent under any successor legislation) is satisfied; (c) the Personal Data is transferred on the basis of Buildworks’ approved binding corporate rules, which establish adequate protection of such personal information and are legally binding on the Buildworks Group; or (d) the transfer takes place pursuant to the EU-U.S. Privacy Shield framework. We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission, which have been incorporated into the DPA.
7.4 Data Processing Agreements.
7.4.1 Buildworks’ DPA can be executed by submitting a request via e-mail to email@example.com. Upon execution by Subscriber, the DPA is hereby incorporated by reference herein into the terms of this Agreement.
7.4.2 California Consumer Privacy Act (CCPA) Addendum. Buildworks’ CCPA Addendum can be executed by submitting a request via e-mail to firstname.lastname@example.org. Upon execution by Subscriber, the CCPA Addendum is hereby incorporated by reference herein into the terms of this Agreement.
7.5 Sub-processors. You acknowledge and agree that Buildworks may use Sub-processors, who may access Service Data, to provide, secure and improve the Services. We shall be responsible for the acts and omissions of members of Buildworks Personnel and Sub-processors to the same extent that We would be responsible if Buildworks was performing the services of each Buildworks Personnel or Sub-processor directly under the terms of this Agreement. The names and locations of all current Sub-processors used for the Processing of Personal Data under this Agreement are set forth in the Sub-processor Policy.
SECTION 8. TEMPORARY SUSPENSION
8.1 We reserve the right to restrict functionalities or suspend the Services (or any part thereof), Your Account or Your and/or Users’ rights to access and use the Services and remove, disable or quarantine any Service Data if (a) We reasonably believe that You or Users have violated this Agreement; or (b) We suspect or detect any Malicious Software connected to Your Account or use of a Service by You or Users. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You or Users may be referred to law enforcement authorities at Our sole discretion.
SECTION 9. NON-BUILDWORKS SERVICES
9.1 If You decide to enable, access or use Non-Buildworks Services, Your access and use of such Non-Buildworks Services shall be governed solely by the terms and conditions of such Non-Buildworks Services. Buildworks does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Non-Buildworks Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data), or any interaction between You and the provider of such Non-Buildworks Services. We cannot guarantee the continued availability of such Non-Buildworks Service features, and may cease enabling access to them without entitling You to any refund, credit or other compensation, if, for example and without limitation, the provider of a Non-Buildworks Service ceases to make the Non-Buildworks Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Buildworks with respect to such Non-Buildworks Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Non-Buildworks Services, or Your reliance on the privacy practices, data security processes or other policies of such Non-Buildworks Services. You may be required to register for or log into such Non-Buildworks Services on their respective websites. By enabling any Non-Buildworks Services, You are expressly permitting Buildworks to disclose Your login and Service Data as necessary to facilitate the use or enablement of such Non-Buildworks Services.
SECTION 10. FREE TRIALS
10.1 If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in Our sole discretion. Trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase. ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD.
SECTION 11. BETA SERVICES
11.1 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to Supplemental Terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Non-Buildworks Services shall apply equally to Your use of Beta Services. Unless otherwise stated or communicated to You, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
SECTION 12. INTELLECTUAL PROPERTY RIGHTS
12.1 Each Party shall retain all rights, title and interest in any Intellectual Property Rights. The rights granted to You and Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights of Buildworks associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Buildworks and belong exclusively to Buildworks.
12.2 The Buildworks Group shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Users, or other third parties acting on Your behalf. The Buildworks Group also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations or other feedback We receive from You, Users or other third parties acting on Your behalf.
12.3 You may only use the Buildworks Marks in a manner permitted by Our Trademark Usage Guidelines, provided You do not attempt, now or in the future, to claim any rights in the Buildworks Marks, degrade the distinctiveness of the Buildworks Marks, or use the Buildworks Marks to disparage or misrepresent Buildworks or Our Services.
SECTION 13. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
13.1 Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
13.2 Warranties. We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty in this section, Your exclusive remedies are those described in Section 3.3 herein.
13.3 Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 13.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SECTION 14. INDEMNIFICATION
14.1 Indemnification by Us. We will indemnify, defend and hold You harmless from and against any claim brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Buildworks for such defense, provided that (a) You promptly notify Buildworks of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with Buildworks in connection therewith. If use of a Service by You or Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Buildworks, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Buildworks for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 14.1 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than Buildworks or Buildworks Personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 14.1 state the sole, exclusive and entire liability of Buildworks to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You or Users.
14.2 Indemnification by You. You will indemnify, defend and hold Buildworks harmless against any claim (a) arising from or related to use of a Service by You or Users in breach of this Agreement; or (b) alleging that Your use of the Service or Your Service Data infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret; provided (i) We promptly notify You of the threat or notice of such claim; (ii) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (iii) We fully cooperate with You in connection therewith.
SECTION 15. LIMITATION OF LIABILITY
15.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, USER, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF BUILDWORKS), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
15.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE BUILDWORKS GROUP’S AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE SIX (6) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 15.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR THE CONSULTING SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
THE LIMITATIONS SET FORTH IN SECTION 15.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES RESULTING FROM BUILDWORKS’ IP CLAIMS INDEMNITY OBLIGATIONS IN SECTION 14.1 OF THIS AGREEMENT.
15.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, BUILDWORKS’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
15.4 Any claims or damages that You may have against Buildworks shall only be enforceable against Buildworks and not any other entity or its officers, directors, representatives or agents.
SECTION 16. THIRD-PARTY SERVICE PROVIDERS
16.1 Third-Party Service Providers. You agree that the Buildworks Group, and the third-party service providers that are utilized by the Buildworks Group to assist in providing the Services to You, shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose the Personal Data of Your Users to the extent necessary to provide, secure or improve the Services. Any third-party service providers utilized by the Buildworks Group will only be given access to Your Account as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 5; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 7.
SECTION 17. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
17.1 Assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior written consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement to any member of the Buildworks Group or in connection with any merger or change of control of Buildworks or the Buildworks Group or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
17.2 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements between You and Buildworks with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations or terms of any kind between the Parties, except as may otherwise be expressly provided herein. The headings used herein are for convenience only and shall not affect the interpretation of the terms of this Agreement.
17.3 Amendment. We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Buildworks as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
SECTION 18. SEVERABILITY
18.1 If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
SECTION 19. EXPORT COMPLIANCE AND USE RESTRICTIONS
19.1 The Services and other Buildworks technology, and derivatives thereof, may be subject to export controls and economic sanctions laws and regulations of the United States and other jurisdictions. Subscriber agrees to comply with all such laws and regulations as they relate to access to the Services and other Buildworks technology. Subscriber represents that they are not named on any U.S. government restricted-party list, will not permit any User to access or use any Service in a U.S.-embargoed country or region, and will not permit the Service to be used for any prohibited end use (e.g., nuclear, chemical, or biological weapons proliferation, or missile-development purposes).
SECTION 20. RELATIONSHIP OF THE PARTIES
20.1 The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
SECTION 21. NOTICE
21.1 Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Services system administrator designated by you.
SECTION 22. GOVERNING LAW
22.1 This Agreement shall be governed by and construed in accordance with the following:
If Your domicile is the United States of America, including all of its territories, and Canada, this Agreement shall be governed by the laws of the State of New York, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in the city of New York.
If Your domicile is the European Union and the overseas territories of the European Union member countries, the European Economic Area, Switzerland, Turkey, Ukraine and the rest of the world, this Agreement shall be governed by the laws of Estonia, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Harju Country.
You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You or Users.
SECTION 23. FEDERAL GOVERNMENT END USE PROVISIONS
23.1 If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.
SECTION 24. ANTI-CORRUPTION
24.1 You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at email@example.com.
SECTION 25. SURVIVAL
25.1 Sections 2.1, 3.5, 3.6, 4.4, 5 – 7, 12 – 22 and 26 shall survive any termination of this Agreement with respect to use of the Services by You or Users. Termination of this Agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
SECTION 26. DEFINITIONS
26.1 When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
“Account” means any accounts or instances created by or on behalf of Subscriber or its Affiliates within the Services.
“Additional Feature(s)” means additional features or functionality (including, but not limited to, Built by Buildworks Marketplace Applications, Buildworks Labs apps, Early Access Programs, or Beta Services) that are available or enabled through the Service, but do not form part of the Service. Additional Features also include third party services that are purchased and/or subscribed to via an Order Form and that are identified as being resold by Buildworks and governed by such third party’s alternate agreement. Additional Features are purchased or enabled separately and distinctly from Your Service Plan and Deployed Associated Services.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“User” means an individual (including those of Your Affiliates) authorized to use the Service(s) through Your Account, each as identified through an individual User Login.
“User Login” means a unique username (e-mail) and associated password provisioned to an identifiable individual to permit them to access the Services.
“API” means the application programming interfaces developed, made available and enabled by Buildworks that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.
“Applicable Data Protection Law” means the following data protection law(s): (a) the EU Regulation 2016/679 entitled “On the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation or GDPR)” and any applicable national laws made under it; and (b) the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded).
“Associated Services” means products, services, features and functionality designed to be used in conjunction with the Services that are not included in the Service Plan to which You subscribe. For avoidance of doubt, Additional Features that are expressly stated to be governed by separate Supplemental Terms shall not be deemed an Associated Service. Where You have purchased, deployed, or subscribed to an Associated Service, such Associated Service is referred to as a “Deployed Associated Service.”
“Beta Services” means a product, service or functionality provided by Buildworks that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
“Buildworks” means Intelsys OÜ, an Estonian corporation, or any of its successors or assignees.
“Buildworks Group” means Intelsys OÜ, an Estonian corporation together with all its Affiliates.
“Buildworks' Customer Controlled User Assumption Policy“ means the policy available on Buildworks Trust Center.
“Buildworks Marks” means any trademarks, service marks, service or trade names, logos or other designations of Buildworks, the Buildworks Group, or its or their Affiliates, whether registered or unregistered.
“Buildworks' Service-Specific Terms” means the Supplemental Terms applicable to use of different Services available on Buildworks Trust Center.
“Buildworks Trust Center” means the website located at: https://build.works/trustcenter.
“Buildworks' User Conduct Policy“ means the policy available on Buildworks Trust Center.
“Buildworks Marks” means any trademarks, service marks, service or trade names, logos or other designations of Buildworks, the Buildworks Group, or its or their Affiliates, whether registered or unregistered.
“Built by Buildworks Marketplace Applications” means integrations and applications created or developed by Buildworks or its Affiliates and made available in the Buildworks Marketplace which will be governed by this Agreement unless Buildworks otherwise communicates a different agreement to You at the time of Your deployment of or access to the integration or application.
“Confidential Business Information” means all Confidential Information that is not Service Data, including, without limitation, Your Users’ Personal Data and Account information, which Buildworks may store in its systems separate from the Service and Our security policies and procedures.
“Confidential Information” means all information disclosed by one Party to the other Party which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, the terms of this Agreement, Subscriber Service Data and Confidential Business Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.
“Consulting Services” means consulting and professional services (including any training, success and implementation services) provided by Buildworks Personnel as indicated on an Order Form or other written document such as a SOW.
“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Buildworks to You in the applicable Buildworks help center or Site; provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
“Enterprise Services” means any Service not designated on Buildworks’ Innovation Services List.
“Force Majeure Event” means any circumstances beyond Our reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Buildworks Services, or acts undertaken by third parties, including without limitation, denial of service attack.
“Innovation Services” means any Service described on Buildworks’ Innovation Services List.
“Intellectual Property Rights” means any and all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
“Malicious Software” means any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
“Non-Buildworks Services” means third party products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Non-Buildworks Services which may be integrated directly into Your Account by You or at Your direction.
“Order Form” means Our generated service order form(s) or online ordering document or process completed, executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of Users authorized to use a Service under Your subscription and the Service Plan applicable to Your subscription.
“Payment User” means build.works technologies OÜ or a payment agent designated by Buildworks. For example, if You choose to pay for a Service with a credit card or certain other payment instruments in a currency other than the Euro, Buildworks may designate the Payment User to be Buildworks America, Inc., a Delaware corporation.
“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
“Personnel” means employees and/or non-employee service providers and contractors of the Buildworks Group engaged by the Buildworks Group in connection with performance hereunder.
“Planned Downtime” means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.
“Processing/to Process/Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Service(s)” means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and whether Enterprise Services or Innovation Services, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all Deployed Associated Services that are provided under this Agreement. “Services” exclude (a) Non-Buildworks Services as that term is defined in this Agreement; and (b) any Additional Features or Associated Services that are not provided under this Agreement or Your Service Plan. From time to time, the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
“Service Data Breach” means an unauthorized access or improper disclosure that has been verified to have affected Your Service Data.
“Service Plan(s)” means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services.
“Site” means a website operated by the Buildworks Group, including www.build.works, as well as all other websites that the Buildworks Group operates (but shall not include the Services).
“Software” means software provided by Buildworks (either by download or access through the internet) that allows Users to use any functionality in connection with the applicable Service.
“Sub-processor” means any third-party data processor engaged by Buildworks, including entities from the Buildworks Group, that receives Service Data from Buildworks for Processing on behalf of Subscriber and in accordance with Subscriber’s instructions (as communicated by Buildworks) and the terms of its written subcontract.
“Subscription Charges” means all charges associated with Your access to and use of an Account.
“Subscription Term” means the period during which You have agreed to subscribe to a Service with respect to any individual User.
“Supplemental Terms” means the additional terms and conditions that are (a) set forth below in this Agreement in the sections entitled, “Supplemental Terms”; (b) included or incorporated on an Order Form via hyperlink or other reference (e.g. when a Deployed Associated Service is purchased); (c) applicable to Consulting Services when purchased by You; (d) applicable to Additional Features when activated by You; and (e) Buildworks’ Service-Specific Terms.
“Taxes” means taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.
“Usage Charges” means additional Subscription Charges that are incurred by Subscriber relating to the use of certain features and functionality that Subscriber enables within the Service.
“Usage Data” means metrics and information regarding Your use of the Service, including evaluating how Users use the Service.
“We,” “Us” or “Our” means Buildworks as defined below.
Supplemental Terms and Conditions
SUPPLEMENTAL TERMS: CONSULTING SERVICES
If Subscriber has engaged Buildworks for the provision of professional services (including any training, success, and implementation services) (collectively, “Consulting Services”) as indicated on a Statement of Work (“SOW”) or other written document such as a “Description of Consulting Services” on an Order Form, the provision of such Consulting Services will be governed by the Agreement. Unless otherwise agreed to in a SOW or Order Form, Subscriber agrees that any Consulting Services purchased by Subscriber must commence within six (6) months of the execution of the SOW or Order Form. In consideration of the foregoing, Subscriber and Buildworks, intending to be legally bound, agree to the terms set forth below.
1. Scope. All Consulting Services provided by Buildworks to Subscriber and all deliverables required to be provided by Buildworks to Subscriber pursuant to the Agreement (“Deliverables”) will be outlined in one or more mutually agreed-upon and jointly executed SOWs or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of the Consulting Services and Deliverables to be provided.
2. Retention. Subscriber hereby retains Buildworks to provide the Consulting Services described in one or more SOWs or Order Forms, subject to the terms and conditions set forth in the Agreement. Buildworks shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed a SOW or Order Form with respect to such Consulting Services. After execution of a SOW or Order Form, the Consulting Services to be provided under that SOW or Order Form may only be changed through a change order mutually executed by the Parties (“Change Order”).
3. Performance of Consulting Services.
3.1 Each SOW or Order Form will include reasonable details about Consulting Services, including, at a minimum, the Consulting Fees (defined below). Buildworks and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.
3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services.
3.3 Buildworks will perform the Consulting Services through qualified employees and/or non-employee contractors of Buildworks (“Subcontractors” and together with Buildworks’ employees for the purposes of these Supplemental Terms, “Consulting Services Personnel”). Subscriber agrees to provide, at no cost to Buildworks, timely and adequate assistance and other resources reasonably requested by Buildworks to enable the performance of the Consulting Services (collectively, “Assistance”). Buildworks, including its Subcontractors, will not be liable for any deficiency in the performance of Consulting Services to the extent such deficiency results from any acts or omissions of Subscriber, including, but not limited to, Subscriber’s failure to provide Assistance as required hereunder.
3.4 In performing the Consulting Services, Buildworks will utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to Buildworks’ use of a Subcontractor by specifying its reasonable objection to Buildworks, in which case the Parties will cooperate in good faith to appoint another Consulting Services Personnel to perform such Consulting Services. Buildworks may replace Consulting Services Personnel in its normal course of business, provided that Buildworks will be responsible for the performance of Consulting Services by all Consulting Services Personnel.
3.5 Buildworks will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Consulting Services Personnel performing Consulting Services. Buildworks will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Buildworks’ obligations under the Agreement in accordance with its terms.
3.6 Consulting Services Personnel may enter (“assume into”) Subscriber’s production Account to provide the Consulting Services as provided for in Buildworks’ Customer Controlled User Assumption Policy.
3.7 In the event that Subscriber seeks to change the scope of Consulting Services to be provided under any SOW or Order Form (including, but not limited to, any changes to the project schedule described in the SOW or Order Form), Subscriber shall discuss such proposed changes with Buildworks. If Buildworks elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a written Change Order. Buildworks shall be entitled to an adjustment in Consulting Fees pursuant to the changes reflected in the Change Order. Buildworks shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order.
3.8 Unless otherwise agreed to in a SOW or Order Form, for Consulting Services that are Deliverable or milestone based, upon delivery of all Deliverables or completion of all milestones detailed in the SOW or Order Form, Buildworks shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) business days from the date of the Completion Notice to provide Buildworks with written notice describing any Deliverables that have not been provided or milestones not met. The SOW or Order Form shall be deemed complete and the Deliverables accepted or milestones met absent Subscriber’s timely written notice of any Deliverables not having been provided or milestones not having been met. In the event that Subscriber provides timely written notice of any Deliverables not having been provided or milestones not having been met, Buildworks shall make commercially reasonable efforts to remedy the defects identified. If the defects cannot be remedied, Subscriber may terminate the applicable SOW and Buildworks shall return the portion of the Consulting Fees paid to Buildworks by Subscriber for the nonconforming portion of the Consulting Services (or, if Consulting Fees have not yet been paid, Subscriber will be relieved from its obligation to pay Consulting Fees for the nonconforming portion of the Consulting Services). For the avoidance of doubt, a Completion Notice shall not be necessary for Consulting Services that are time and materials based.
3.9. If any Consulting Service, in whole or in part, cannot be provided by Buildworks due to a Subscriber's act or omission and Subscriber fails to provide Buildworks with reasonable advance notice prior to its act or omission, the time spent by Buildworks' resources on such Consulting Service will be billed to Subscriber. In addition to that all time limits concerning the Consulting Services affected by the delay are postponed to the extent of the delay caused by the act or omission of Subscriber.
4. Consulting Fees.
4.1 Subscriber will pay Buildworks the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Consulting Fees”).
4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW or Order Form. Each SOW or Order Form providing for time and materials based Consulting Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). Buildworks will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. If it appears that the T&M Estimate may be exceeded, Buildworks will make a reasonable effort to notify Subscriber as soon as practicable and provide an amended T&M Estimate. Upon receiving such amended T&M Estimate, Subscriber will accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) business days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Consulting Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is accepted by Subscriber shall be deemed a Change Order.
4.3 As detailed in the applicable SOW or Order Form, the performance of Consulting Services may be subject to an advance payment of Consulting Fees by Subscriber upon execution of the SOW or Order Form. Such retainer will be applied against Consulting Fees which become payable by Subscriber. Buildworks may refuse to perform Consulting Services unless and until such advance payment is paid to Buildworks.
4.4 In addition to any and all Consulting Fees, Subscriber will reimburse Buildworks for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including changes to travel and accommodations resulting from Subscriber’s request incurred by Buildworks in connection with providing the Consulting Services (“Expenses”). Buildworks will provide reasonable documentation for all Expenses as requested by Subscriber.
4.5 Any unpaid Consulting Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.
4.6 Cancellation/Changes: Any cancellations of or changes to the Consulting Services less than five (5) business days prior to the agreed upon Consulting Services commencement date are subject to forfeiture of Consulting Fees paid and reserved date(s).
5. Relationship of the Parties. Buildworks is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. Buildworks will never hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Consulting Fees, Expenses or other amounts paid by Subscriber to Buildworks hereunder shall not be considered salary for pension or wage tax purposes and neither Buildworks nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Consulting Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law.
6.1 Buildworks hereby represents and warrants that:
the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by Buildworks and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy for any breach of this warranty will be, at Buildworks’ option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to Buildworks by Subscriber for the nonconforming portion of the Consulting Services; and
it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
6.2 The Parties hereby agree that:
EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6.1 ABOVE, ALL CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED TO SUBSCRIBER “AS IS” AND BUILDWORKS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS THEREOF AND BUILDWORKS EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CONSULTING SERVICES AND DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. BUILDWORKS SHALL NOT BE RESPONSIBLE, IN LAW OR OTHERWISE, FOR ANY DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY DELIVERABLES IN A MANNER NOT INSTRUCTED BY BUILDWORKS. BUILDWORKS DOES NOT WARRANT THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. FURTHER, BUILDWORKS EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN ANY DELIVERABLE AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY BUILDWORKS OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO SUBSCRIBER AND ANY THIRD PARTY’S USE OF THE SERVICES.
7. Rights to Deliverables; Ownership.
7.1 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW or Order Form primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services, and therefore the Deliverables are inoperative without an active subscription to a Service. As between the Parties, Buildworks shall solely and exclusively own all right, title, and interest in the Deliverables (other than Assigned Deliverables, as defined below), including all derivatives, enhancements and modifications thereof; and Subscriber hereby makes all assignments necessary to accomplish the foregoing ownership. Subject to the terms and conditions hereof, Buildworks grants Subscriber a non-exclusive, non-transferable, non-sublicenseable license to use the Deliverables (other than Assigned Deliverables) solely in connection with Subscriber’s permitted use of the Services.
7.2 An “Assigned Deliverable” is a Deliverable created by Buildworks in connection with the Consulting Services that is specifically identified as being assigned to Subscriber in an SOW, excluding any Buildworks Background IP that may be incorporated into such Deliverable. “Buildworks Background IP” means inventions (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information, tools and other intellectual property owned by Buildworks that are incorporated into an Assigned Deliverable and, (a) in existence prior to the commencement of the Consulting Services or (b) developed, created, conceived or reduced to practice by Buildworks not in connection with the applicable SOW. Subject to payment of the applicable Consulting Fees for the applicable Assigned Deliverable, (i) Buildworks hereby assigns title to such Assigned Deliverable to Subscriber, and (ii) to the extent any Buildworks Background IP is incorporated into such Assigned Deliverable, Buildworks grants to Subscriber a perpetual, irrevocable, non-exclusive, royalty-free, fully paid, worldwide license to use and exercise such Buildworks Background IP in connection with such Assigned Deliverable.
7.3 A “Subscriber Contribution” is source code that is created by Subscriber in connection with the Consulting Services and is specifically identified in a SOW. Subscriber and Buildworks agree that Subscriber retains title to Subscriber Contributions, and Subscriber hereby grants Buildworks a non-exclusive license to use and exercise the Subscriber Contributions for the performance of the Consulting Services and Services.
8. Open Source.
8.1 Buildworks may incorporate open source materials into any Deliverable or Assigned Deliverable. Buildworks will notify Subscriber that it is providing such open source software upon or prior to delivery, and Buildworks will avoid providing any open source materials that are governed by a so-called “copyleft license” that would require Subscriber to permit any disclosure of, distribute or make available any of Subscriber’s proprietary software if Subscriber uses the Deliverables or Assigned Deliverables as permitted hereunder. Any open source materials provided by Buildworks are licensed to Subscriber pursuant to the terms of the applicable open source license and not this Agreement.