Last Updated December 10, 2019
If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the party entering into this Agreement and you represent that you have the power and authority to bind that organization to this Agreement.
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means either: (a) ownership or control of more than 50% of the voting interests of the subject entity; or (b) the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise.
1.2 “Application” means the application(s) made available by Buildertrend, from time to time, in order to access the Service from a mobile device.
1.3 “Authorized User” means an individual who is authorized by Customer to use the Service under Customer’s account. Authorized Users may include, without limitation, Customer’s or its Affiliate’s employees, consultants, contractors, and agents.
1.4 “Customer” means a party who has purchased a Subscription from Buildertrend to access the Service.
1.5 “Customer Data” means information submitted by an Authorized User through the Service, including all associated job information, messages, attachments, files, tasks, to-dos, daily logs, invoices, photographs, videos, client information, and other similar content.
1.6 “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
1.7 “Improvements” means new versions, features, functionality, enhancements, upgrades, error corrections, and bug fixes to the Service made generally available to its customers by Buildertrend, from time-to-time, at no additional charge.
1.8 “Order Form” means an ordering document or an online order provided by email or through the Service interface, specifying the Service to be provided by Buildertrend to a Customer.
1.9 “Registered Client” means an individual who has been invited to use the client-facing or subcontractor communication features of the Service in a limited capacity as a client or subcontractor of an Authorized User.
1.10 “Registered Client Data” means information submitted by a Registered Client through the Service, including all associated job information, messages, attachments, files, tasks, to-dos, daily logs, photographs, videos, and other similar content.
1.11 “Support Services” means the success services provided by Buildertrend, as specified in an applicable Order Form.
1.12 “Service” means Buildertrend’s construction management software as a service platform, including any Improvements and Applications.
1.13 “Subscription” means the access to the Service purchased by a Customer, as set forth in an applicable Order Form, who has authorized you to use or access the Service under such Customer’s account.
1.14 “Subscription Term” means the period during which you are authorized by a Customer or an Authorized User to use or access the Service under a Customer’s account pursuant to the terms set forth in this Agreement.
2. The Service
2.1 Provision of the Service. During the applicable Subscription Term, Buildertrend shall make the Service purchased by such Customer available for use by you pursuant to the terms of this Agreement. The Service will include the features and functionality applicable to the version of the Service ordered by the relevant Customer. Buildertrend may update the content, functionality, and user interface of the Service from time to time in its sole discretion.
2.2 Access Rights. Buildertrend hereby grants you a non-exclusive, non-sublicenseable, non-transferable (except as specifically permitted in this Agreement), revocable right to access and use the Service, pursuant to the terms of this Agreement, during the applicable Subscription Term.
2.3 Usage Rights. You shall not (a) make the Service available to, or use the Service for the benefit of, anyone other than you; (b) rent, sublicense, re-sell, assign, transfer, distribute, time share, or similarly exploit the Service; (c) reverse engineer, copy, modify, adapt, hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) access the Service or Buildertrend’s Confidential Information to build a competitive product or service; (e) alter or remove, or permit any third party to alter or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Service; (f) allow Authorized User Subscriptions to be shared or used by more than one individual Authorized User (except that Authorized User Subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the Service for any purpose, whether by termination of employment or other change in job status or function); (g) purchase any services through the Service which are prohibited in your jurisdiction; (h) use any software, devices, scripts, crawlers, robots, or other automated processes to copy, scrape, or systematically acquire any content contained within the Service without the express written consent of Buildertrend, or (i) access or use the Service: (1) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (2) in violation of applicable laws; (3) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, or scripts; or (4) in a manner that interferes with or disrupts the integrity or performance of the Service (or the data contained therein). You are solely responsible for maintaining the security of your account and password.
2.4 Compliance. You are responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data you upload into the Service. You shall ensure that you are entitled to transfer the relevant Customer Data to Buildertrend so that Buildertrend and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on the relevant Customer’s behalf. You shall promptly notify Buildertrend if you become aware of any unauthorized use of or access to your account or the Service.
2.5 Suspension. In addition to any other remedies that may be available to us, Buildertrend reserves the right to take any remedial action it deems necessary, including immediately suspending or terminating your account or access to the Applications or the Service, without liability for Buildertrend should you fail to abide by the rules in this Agreement or if, in Buildertrend’s sole discretion, such action is necessary to prevent disruption of the Service or Applications for other users. Buildertrend reserves the right to notify Authorized Users or other Customer representative(s) of any violations of this Agreement.
3.1 By You. You warrant that (a) this Agreement is legally binding upon you and enforceable in accordance with its terms; (b) you have obtained all legally required consents and permissions for the submission and processing of any and all data submitted through the Service by you including, but not limited to personal data; and (c) the transfer and processing of Customer Data or Registered Client Data uploaded by you into the Service complies with all applicable laws.
3.2 By Buildertrend. Buildertrend warrants that (a) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (b) its performance hereunder will not conflict with any other agreements with third parties.
3.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS SECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, THE APPLICATION, THE SERVICE, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND BUILDERTREND AND ITS AFFILIATES EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE AND NON-INFRINGEMENT NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE AND BUILDERTREND DOES NOT WARRANT THAT THE SERVICE OR THE APPLICATION WILL MEET YOUR NEEDS. YOU ACKNOWLEDGE THAT BUILDERTREND DOES NOT WARRANT THAT THE APPLICATION OR THE SERVICE WILL BE UNITERRUPTED, TIMELY, SECURE, OR ERROR-FREE. BUILDERTREND IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE, AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD-PARTY HOSTING SERVICE PROVIDERS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY IN ALL CIRCUMSTANCES. Buildertrend does not warrant that the Application or the Service will be compatible with all devices. If the Application or the Service is accessed through a mobile device, the relevant wireless service carrier may charge applicable data rates and related fees.
3.4 Device and Wireless Carrier Disclaimers. While Buildertrend attempts to provide the Service and Application features to all users, use of the Application and the Service may be limited for some or all users due to conditions outside of Buildertrend’s control. As a result, not all advertised features may be available at all times. Some of these conditions include, but are not limited to, the following: an individual’s mobile device or their wireless carrier may limit the features available. Data or messaging plans may limit certain use of the Service. An individual’s wireless voice and/or data signal may make access to the Application or some of its features intermittent or unavailable. The Application and its features may not be available in some geographic locations.
Buildertrend is not liable, and expressly disclaims any representations or warranties, regarding access to the Application or its services or features through a particular wireless carrier, network, or plan, on a particular device, or in a particular location. Buildertrend does not guarantee that the Service will always be accessible or available. You are responsible for any and all costs you incur to access the Application through your own mobile device.
4. Term and Termination.
This Agreement commences upon your downloading or using of any Applications or accessing of the Services and shall remain in effect for the duration of the Subscription Term, except as otherwise set forth herein. Either party may terminate this Agreement if the other party: (a) is in material breach of this Agreement and fails to cure such breach within twenty (20) days following receipt of written notice from the non-breaching party, except that termination will take effect upon notice in the event of a breach of Section 2.3 (Usage Restrictions); or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days. Upon expiration or termination of this Agreement for any reason, any rights granted to you under this Agreement shall immediately terminate, and Buildertrend may immediately deactivate your account(s) associated with the Agreement. In no event will any termination relieve you of the obligation to pay any fees accrued or payable to Buildertrend. The following sections shall survive expiration or termination of this Agreement: Section 1 (Definitions), Section 2.3 (Usage Rights), Section 3 (Warranties), Section 4 (Term and Termination), Section 5 (Confidentiality), Section 6 (Intellectual Property Rights), Section 7 (Indemnification), Section 8 (Liability), Section 9 (Export Compliance), Section 10 (Use Outside the United States of America), and Section 11 (Miscellaneous).
5.1 Definition of Confidential Information. During the course of performance under this Agreement, each party may make available to the other party information that is not generally known to the public and at the time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, but is not limited to, the Service, any Order Form(s) entered into by the parties, Customer Data, Registered Client Data, results, business plans, project plans and roadmaps, schedules, forecasts, purchase orders, billing, financial information and fee structures, business processes, methods and models, and technical documentation. Confidential Information does not include information that (a) is or becomes publicly available without breach of this Agreement by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.
5.2 Protection of Confidential Information. Except as otherwise expressly permitted under this Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit, or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. The receiving party may disclose the disclosing party’s Confidential Information to its employees, Affiliates, consultants, subcontractors, agents, or advisors (“Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. Either party may disclose the terms of this Agreement to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for purposes of the proposed transaction, provided that any such potential party is subject to written non-disclosure obligations and limitations on use no less protective than those set forth herein.
5.3 Equitable Relief. The receiving party acknowledges that the remedy at law for breach of this Section 6 may be inadequate and that, in addition to any other remedy the disclosing party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this Section 6 by the receiving party or any of its Representatives and to enforce the terms and provisions of this Section 6 in addition to any other remedy to which the disclosing party is entitled at law or in equity.
5.4 Compelled Disclosure. The receiving party may access and disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to such access or disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures. If the receiving party is compelled by law to access or disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, the disclosing party will reimburse the receiving party for the reasonable costs of compiling and providing secure access to such Confidential Information. Receiving party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
5.5 Sensitive/Personal Information. You agree that it shall not use the Service to send or store personal information subject to special regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act, and any similar data protection laws) including without limitation: credit card information, credit card numbers and magnetic stripe information, social security numbers, driver’s license numbers, passport numbers, government issued identification numbers, health-related information, biometric data, financial account information, personally identifiable information collected from children under the age of 13 or from online services directed toward children, and real time geo-location data which can identify an individual, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs).
6. Intellectual Property Rights
6.1 By You. You own all right, title, and interest in and to your Confidential Information and Customer Data, including all related Intellectual Property Rights and Registered Client Confidential Information. You grant Buildertrend and its authorized third party service providers a worldwide, non-exclusive, royalty-free license to host, copy, access, process, transmit, and display Customer Data: (a) to maintain, provide, and improve the Service and perform under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) to investigate in good faith an allegation that an Authorized User or Registered Client is in violation of this Agreement; or (d) at your direction or request or as permitted in writing by you. Notwithstanding anything set forth herein to the contrary, Buildertrend may also collect information from the Service related to or arising from your use of the Service. Such information may include personally identifiable information; provided that, Buildertrend agrees to remove or anonymize all personally identifiable information included in such data before disclosing such information to any third party. Buildertrend may use such collected information to improve its product offerings and services as well as share it with third party affiliates to develop new product offerings and services.
6.2 By Buildertrend. Buildertrend owns and will continue to own all right, title, and interest, including all related Intellectual Property Rights, in and to its Confidential Information and the Service, including any Improvements, enhancements, customizations, or modifications thereto.
6.3 Suggestions. Buildertrend welcomes feedback from its customers about the Service. If you provide Buildertrend with any ideas, suggestions, documents, proposals or feedback regarding the Service (“Feedback”), you agree as follows: (i) you grant Buildertrend an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, disclose, prepare derivative works, publish, reproduce, sublicense, or otherwise distribute and exploit the Feedback without restriction or any obligation to you, provided that Buildertrend shall not identify you, as the source of such Feedback, and (ii) the Feedback does not contain any confidential information of third parties, and (iii) Buildertrend is under no obligation of confidentiality, express or implied, with respect to the Feedback.
7. Mobile Application License
7.1 License. Buildertrend may offer from time to time the Buildertrend Mobile Application. If such an Application is available and you choose to download it, subject to, and in accordance with, the terms of this Agreement, Buildertrend grants to you and you accept from Buildertrend, a limited, revocable, non-exclusive, and non-transferable license to use the Application. Buildertrend reserves all rights not expressly granted hereunder. This license is automatically revoked if a party violates any of the terms of this Agreement.
7.2 Payment Terms. Buildertrend may make all or some of the Application and the Application’s services available for free (the “Free Services”). Buildertrend does not guarantee that any portion of the Services will always be available for free and reserves the right to begin charging for any portion of the Services at any time. The Free Services may have reduced functionality. Please review the specific terms for your applicable purchase. If you make a purchase through the Service, then you consent to Buildertrend storing your payment information. Prices are subject to change. In the event the Buildertrend Service is discontinued for any reason, any purchases will terminate and no refund will be made.
7.3 Source Code. The grant of this license is not, and shall not be construed as, a grant of any right to use, receive or view, copies of source code, schematics, master copies, design materials or other information used in creating, developing or implementing the Application, including updates or modifications thereto. Without limiting the foregoing, you shall have no rights to receive any source code for the Application and shall not reverse engineer, disassemble or decompile, or otherwise attempt to derive source code for the Application for any purpose.
7.4 Prohibitions. You agree not to do, or permit others to do, any of the following: (a) copy or modify the Application in any way, except as expressly permitted in these Terms; (b) remove or modify Buildertrend’s copyright notices, trademark, logo, legend or other notice of ownership from any originals or copies of the Application or Service; (c) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print the Application’s source code or object code or other runtime objects or files distributed with the Application; (d) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Application or Service; (e) rent, lease, distribute (or redistribute), provide or otherwise make available the Application or Service, in any form, to any third party (including in any service bureau or similar environment); (f) use the Application or Service to process the data of third parties; (g) use, install, or make available the Application, in whole or in part, through a wide area network including but not limited to World Wide Web sites, intranets, or Application Service Providers (ASP); or (h) use the Application or Service to infringe on any person’s copyright. In addition, you agree not to violate or attempt to violate the security of Buildertrend’s networks or servers, including (x) access data not intended for you or log into a server or account which you are not authorized to access; (y) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempt to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing.
7.5 Maintenance or Support. Buildertrend is not under any obligation to provide maintenance or support for the Application. Buildertrend may provide maintenance or support for the Application in Buildertrend’s sole discretion.
7.6 Uninstallation. You may, at any time, uninstall the Application by utilizing its mobile device’s procedures for uninstalling downloaded applications. However, Buildertrend may retain collected data after the uninstallation.
7.7 Third-Party Terms. You must comply with applicable third-party terms of service when using the Application, including any terms required by an applicable mobile carrier or device manufacturer.
7.8 Apple and Google-Specific Terms. The following additional terms and disclosures only apply to you if you use the Application through the Apple or Google operating systems, if available and as applicable:
- This is a custom end-user license agreement between you and Buildertrend, and not with Apple. Buildertrend, and not Apple, is solely responsible for the Application, the Service, and the related content.
- Buildertrend grants you the non-transferable right to use the Application on any Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service
- Apple has no obligation whatsoever to furnish any maintenance and support services with respect to this Application.
- In the event of any failure of the Application to conform to any applicable warranty, if any, you may notify Apple, and Apple will refund the purchase price, if applicable, for the Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of to conform to any warranty, if any, will be the sole responsibility of Buildertrend.
- Buildertrend, and not Apple, is responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim the Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
- In the event of any third party claim that the Application or your possession and use of that Application infringes that third party’s intellectual property rights, Buildertrend, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Any questions, complaints, or claims with respect to the Application should be directed to the address contained in Section XX, below, or at firstname.lastname@example.org.
- You must comply with applicable third party terms of agreement when using the Application.
- Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and, upon your acceptance, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
- This is a separate end user license agreement between you and Buildertrend, and not with Google.
- Subject to, and in accordance with, these Terms and any required payments, Buildertrend grants to You, and You accept from Buildertrend, a non-exclusive, worldwide, and perpetual license to perform, display, and use the Application on your device that can access Google Play. The user may include, but is not limited to, a family group, with a family manager and family members whose accounts are joined together for the purpose of creating a family group. Family groups on Google Play are subject to reasonable limits designed to prevent abuse of family sharing features. Users in a family group may purchase a single copy of the Service (except in-app and subscription products, which cannot be shared) and share it with other family members in their family group. This license is automatically revoked if you violate any of these Terms.
- You are allowed unlimited reinstalls of the Application, unless and until Buildertrend removes the Application from the Google Play or any other Google-branded distribution platform.
- Buildertrend, and not Google, will have the sole responsibility to undertake or handle support and maintenance of the Application or any complaints about the Application, subject to these Terms.
- Buildertrend, and not Google, is responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim the Application fails to conform to any applicable legal or regulatory requirement; (c) intellectual property claims; and (d) claims arising under consumer protection, privacy, or similar legislation, if applicable.
- Buildertrend, and not Google, is solely responsible for Buildertrend’s breach of any agreement with Google, any applicable third-party contract or terms of service, or any applicable law or regulation.
- Any questions, complaints, claims, or issues regarding defects or performance issues with respect to the Application should be directed to the address contained in Section XX, below, or at email@example.com.
8.1 By Customer. You shall indemnify, hold harmless and defend Buildertrend, its Affiliates, and their employees, officers, and directors (together, the “Buildertrend Indemnified Parties”) from and against any third party claims, actions, proceedings, suits and demands brought against the Buildertrend Indemnified Parties, and against all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, settlement costs and reasonable attorneys’ fees) incurred by the Buildertrend Indemnified Parties arising out of or relating to: (i) your breach of any term or condition of this Agreement, (ii) your use of the Service, (iii) your unauthorized use of the Service, or (iv) your use, posting, uploading or transmission of Customer Data and/or Registered Client Data. Buildertrend will provide prompt notice to you of any indemnifiable claim against Buildertrend. You will undertake, at your own cost, the defense of any claim, suit, or proceeding with counsel reasonably acceptable to Buildertrend. Buildertrend reserves the right to participate in the defense of the claim, suit or proceeding, at Buildertrend’s expense, with counsel of Buildertrend’s choosing.
8.2 By Buildertrend. Buildertrend will indemnify, defend, and hold harmless you, your Affiliates, and their employees, officers, and directors (together “Your Indemnified Parties”) from and against all liabilities, damages, costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Your Indemnified Parties to the extent the claim is based on an allegation that the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Buildertrend have any obligations or liability under this Section arising from: (i) your use of the Service other than as permitted under this Agreement; or (ii) use of the Service in a modified form or in combination with products, services, content, or data furnished to your by Buildertrend.
8.3 Potential Infringement. If the Service becomes, or in Buildertrend’s reasonable judgment is likely to become, subject to a claim of infringement, then Buildertrend may in its sole discretion: (a) obtain the right, at Buildertrend’s expense, for you to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that it is no longer infringing. If Buildertrend, in its sole reasonable judgment, determines that none of the above options are commercially reasonable, then Buildertrend may suspend or terminate your use of the Service, in which case Buildertrend’s sole liability (in addition to its obligations under Section 8.2) shall be to provide you with a prorated refund of any prepaid, unused fees applicable to the remaining portion of the Subscription Term. Sections 8.2 and 8.3 state Buildertrend’s sole liability and Your Indemnified Parties’ exclusive remedy for infringement claims.
8.4 Indemnification Process. The party seeking indemnification must provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and must provide the indemnifying party with all information and assistance reasonably requested and otherwise cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice does not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party shall have full control and authority over the defense of any claim. However, any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (“INDEMNIFICATION”), IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF (A) THE AGGREGATE FEES PAID BY YOU FOR THE SERVICE DURING THE PREVIOUS SIX (6) MONTHS, OR (B) ONE HUNDRED AND 00/100 DOLLARS ($100.00). YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICE OR ANY OTHER GRIEVANCE SHALL BE TERMINATION (WITHOUT REFUND) AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICE.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL BUILDERTREND OR ITS AFFILIATES HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY (A) LOST PROFITS, REVENUES, OR LOSS OF USE, OR LOSS OF DATA, OR INFORMATION (B) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, (C) BODILY INJURY OR EMOTIONAL DISTRESS, OR (D) REPUTATIONAL HARM, HOWEVER CAUSED, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT BUILDERTREND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.3 Allocation of Risk. The provision of this Section 10 allocates the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.
10. Export Compliance.
The Service may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you are not named on any U.S. government denied-party list. You shall not access or use any Service in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation. You shall not use the Service to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or do business.
The U.S. Department of the Treasury, through the Office of Foreign Assets Control (“OFAC”), prohibits U.S. companies from engaging in all or certain commercial activities with certain sanctioned countries (each a “Sanctioned Country”) and certain individuals, organizations or entities, including without limitation, certain “Specially Designated Nationals” (“SDN”) listed by OFAC. If you are located in a Sanctioned Country or are listed as an SDN, you are prohibited from registering or signing up with, subscribing to, or using the Service. If Buildertrend determines that the Service is being used by prohibited persons, Buildertrend will terminate any impacted accounts. Buildertrend reserves the right to also provide notification of any such usage to the US DOT/OFAC.
11. Use Outside the United States.
The Service is controlled and operated by Buildertrend from its offices in the United States of America. Except as explicitly set forth herein, Buildertrend makes no representations that the Service is appropriate for use in other jurisdictions. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with local laws.
12.1 Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of Nebraska without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in Omaha, Nebraska. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.
12.2 MANDATORY ARBITRATION AND PROHIBITION ON CLASS ACTIONS. PLEASE READ THIS SECTION CAREFULLY, IT EXPLAINS THE TERMS UPON WHICH CUSTOMER IS WAIVING ITS RIGHT TO BRING CLAIMS ARISING UNDER THIS AGREEMENT IN A COURT OF LAW OR TO HAVE A JURY RESOLVE ANY DISPUTES HEREUNDER. Except if other applicable laws require otherwise, the parties hereto agree and understand that any dispute or claim related to your use of the Service, any disputes regarding any alleged breach of the Agreement, to the extent such dispute cannot otherwise be resolved, as well as any other action to enforce the terms of this Agreement or for the breach of this Agreement, shall be referred to final and binding arbitration, and not in court. The Federal Arbitration Act and federal arbitration law apply to this agreement.
Any arbitration proceeding will take place in the State of Nebraska, subject to the laws of the State of Nebraska and will otherwise be governed by the then-current commercial arbitration rules of the American Arbitration Association, and the parties hereto expressly waive their rights, if any, to have any such matters heard by a court or jury, or administrative agency whether federal or state. The parties in any arbitration to enforce this Agreement or remedy its breach will equally share the costs associated with such arbitration proceedings; provided, that, each party shall pay its own attorney’s fees. Within fourteen (14) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association.
All parties agree that any dispute resolution proceedings (including any arbitrations and any court proceedings) will be conducted only on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class actions and class arbitrations are prohibited. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. The parties also agree that you and Buildertrend may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
12.3 Notice. Buildertrend may give notices to you related to the Service through email, text, in-app notifications, or by posting them on the Buildertrend website or through the Service and such electronic notices shall satisfy any legal requirement that such notices be made in writing. Notices to Buildertrend shall be sent to Buildertrend Legal at firstname.lastname@example.org with a copy sent first class, airmail, or overnight courier to Buildertrend Solutions, Inc., 11818 I Street, Omaha, NE 68137, c/o: Legal Department.
12.4 Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. Without limiting this Section, you acknowledge and agree that there are no third-party beneficiaries to your rights under this Agreement.
12.5 Force Majeure. Buildertrend shall not be liable to you for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of Buildertrend, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). Buildertrend shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). Buildertrend shall promptly notify you and make reasonable efforts to mitigate the effects of the Force Majeure Event.
12.6 Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
12.7 Assignment. Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by either party without the other party’s express written consent (not to be unreasonably withheld or delayed); provided, however, that either party may assign this Agreement upon written notice without the other party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning party. Any other attempt to transfer or assign this Agreement will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
12.8 Modifications. Buildertrend reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the use of the Service, at any time, by posting the new terms on the Service. The most current version of this Agreement will be located on this webpage. You acknowledge and agree that your access to or use of the Service is governed by the then-current Agreement that is effective at the time of your access to or use of the Service. If Buildertrend makes material changes to this Agreement, it will notify you by updating the “Updated” date indicated at the top of this page with the date that revisions to this Agreement were last made. Buildertrend will not notify you of any such changes by email or other personal contact, but it reserves the right not to do so. You should revisit this Agreement on a regular basis as revised versions will be binding upon you. Any such modification will be effective upon Buildertrend’s posting of such new terms. You understand and agree that your continued access to or use of the Service after the effective date of modifications to this Agreement indicates your acceptance of the modifications.
12.9 Third-Party Services. The Service may use or provide access to one or more third-parties to process payments, process account or user registrations, or provide other services. The use of such third-party services are subject to the third-party’s terms of service. Any disputes arising regarding a third-party’s services must be resolved directly between you and the third-party. Buildertrend disclaims all warranties or representations regarding any third-party services. Buildertrend, in its sole discretion, and without notice to you, may subcontract any Services to be performed by a third-party.
12.11 Entire Agreement. This Agreement, including all attachments, exhibits, addendums, and any Order Form(s) hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement. To the extent of any conflict or inconsistency between the provisions of the Agreement and any Order Form, the Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a customer purchase order, vendor onboarding process, web portal, or any other order documentation with you shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.