TERMS OF SERVICE
This agreement (“Agreement”) is made as of the date of Customer’s accepts this Agreement (“Effective Date”) by Building Engines, Inc. (“Building Engines“) and the Customer entity identified in the applicable statement or work or order form (“Customer” or “You”). Building Engines and Customer are referred to herein, separately, as Party and jointly as Parties.
CUSTOMER IS EXPRESSLY ACCEPTING THE TERMS OF THIS AGREEMENT BY EITHER: (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING SERVICES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A PERSON OR ENTITY, HE/SHE REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND HIMSELF/HERSELF AND THE ENTITY HE/SHE ASSERTS TO REPRESENT AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” REFERS TO THAT ENTITY AND ITS AFFILIATES.
Building Engines may change this Agreement from time to time at its sole discretion, and if it makes any material changes, it will attempt to notify You by sending you an email to the last email address You provided to the Building Engines or posting a notice on the Building Engines website. Therefore, You agree to promptly notify us of any changes in your email address. Any material changes to this Agreement will be effective upon the earlier of the dispatch of the email notice to You or the date of posting of notice of the changes on our website and shall be evidenced by a new Effective Date shown below. These changes will be effective immediately for new users of the Software and/or Service. Building Engines may require you to provide consent to the updated Agreement before further use of the Software and/or Service is permitted. Otherwise, your continued use of the either the Software or Service constitutes your acceptance of any and all changes. Please regularly check our website to view the then-current Agreement.
In this Agreement, (a) “include” or “including” means “including but not limited to,” and (b) examples are illustrative and not the sole examples of a particular concept.
The parties agree as follows:
1. Scope of Work
1.1 The Parties may enter into one or more order forms or statements of work (each a “SOW”) regulated by this Agreement. Each SOW will constitute a unique agreement between the Parties and will stand alone with respect to any other SOW entered under this Agreement, and will govern all uses of any Software, Services, or applications provided by Building Engines under that SOW. Unless otherwise specifically agreed to by the Parties, the performance of obligations under any one SOW will not affect, and will be unrelated to, the performance of any other SOW entered into under this Agreement. “Software” means software products provided by Building Engines, including all software available on Building Engines’ website or downloaded from Building Engines or any third-party source, as detailed in the applicable SOW, together with all applicable documentation, including the technical specifications, documentation, and user guides and all descriptions of or about the Software, or otherwise made available by or on behalf of Building Engines (collectively, “Documentation”). The term “Software” includes any source code, object code, binaries, executables, configurations, enhancements, additions, derivative works, or other modifications of or to the Software (including descriptions thereof), whether made by Building Engines, by Customer, or by the Parties jointly, whether or not prepared in response to the protocol or design of Customer studies or other information provided by Customer. “Services” may include implementation, operational and technical support, professional, and other related services.
1.2 Building Engines will perform the tasks set forth in each individual SOW in accordance with the terms and conditions contained herein as well as all statutes, regulations, rules, orders, acts, bills, degrees, edicts, bylaws, rulings, ordinances, dicta, commands, orders, directives, pronouncements, or declarations from any governmental or quasi-governmental body and data protection laws applicable in the jurisdiction specified in the SOW (“Laws”). Building Engines will have no obligation to perform any work, actions, or tasks until an appropriate SOW is fully executed. Customer warrants and represents, without limitation, that it and all users of the Software are and will remain in compliance with all Laws and that Customer will be responsible for all uses of the Software.
1.3 This Agreement and individual SOWs may be extended or modified solely upon the written agreement of both Parties (“Change Order”), provided, however, that both Parties agree on the amount of any additional or reduced payment to be made by Customer with respect to the modification or extension of this Agreement or the applicable SOW. Modifications to specific SOWs will not affect other prior, current, or future SOWs. Building Engines will not be required to perform any modification to the subject matter of any SOW until an appropriate Change Order is fully executed.
1.4 In the event of a conflict between the terms of this Agreement, any SOW, or any other document or discussion, the terms of this Agreement will control (unless such SOW expressly acknowledges such and specifically identifies each section and paragraph being varied, solely for purposes of such SOW).
1.5 “Affiliate” means those entities which (a) directly or indirectly, through one or more intermediaries, owns more than 50% of the outstanding voting securities of a Party, or (b) that directly or indirectly through one or more intermediaries, is controlled by a Party (or any entity described in clause (a)), in each case where the term control means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract interest or otherwise, including those entities which assert to be Affiliates. Customer (1) authorizes Building Engines to disclose all Confidential Information (as defined herein) to its Affiliates; (2) will be responsible for the acts and omissions of its Affiliates; and (3) authorizes Building Engines to disclose all Confidential Information to Customer and other Affiliates thereof. The Parties agree that Affiliates of Building Engines may provide Software or Services on behalf of Building Engines. Additionally, an Affiliate of Building Engines may execute a SOW under this Agreement in its own name if such SOW refers to this Agreement. Only Affiliates will be liable for performance by such Affiliate.
2. Term of Agreement
2.1 The term of this Agreement commences on the Start Date provided in the applicable SOW and continues for the Initial Term specified therein. Following the Initial Term, the Agreement will automatically continue in force on an annual basis with any price modifications per Section 3.5 unless one party notifies the other in writing that they wish to terminate the agreement with at least 90 days advance notice of the renewal date.
2.2 Either Party may terminate, upon written notice, this Agreement (together with all SOWs) if the other Party materially breaches this Agreement and fails to cure the breach within thirty days after receipt of written notice of the notifying Party’s intention to terminate this Agreement.
2.3 Either Party may terminate, upon written notice, any individual SOW if (a) the other Party materially breaches the terms of such SOW, and fails to cure the breach within thirty days of written notice of the notifying Party’s intention to terminate such SOW, or (b) a Force Majeure event (as defined in Section 10.1, below) persists for greater than 90 days.
2.4 This Agreement (together with all SOWs) and all rights granted hereunder may be terminated by Building Engines with immediate effect and without notice in the event Customer: (a) admits in writing its inability to pay its debts generally as they become due, (b) makes a general assignment for the benefit of creditors, (c) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it, (d) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent, (e) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization, (f) ceases to do business itself or through a successor; or (g) it or Customer receives a notice of or is subject to an Infringement Claim (as herein defined) or any threat thereof.
2.5 In the event of termination of this Agreement, or in the event of termination of any individual SOW, (a) Building Engines will promptly invoice Customer, and Customer will pay, for all work performed, deliverables provided, or milestones achieved up to the date of termination, in accordance with this Agreement and the applicable SOW. Customer’s use of and access to the Services and Building Engines’ performance of all services will cease; and (b) all fees and other amounts owed or payable by Customer to Building Engines will be immediately due and payable. Building Engines will have no obligation to maintain or provide any Customer Data and may, unless legally prohibited, delete or retain all Customer Data in Building Engines’ possession or under its control.
2.6 Special Termination. Customer may terminate the operation of the Software or Services in any Customer managed property where there is an ownership and/or management change such that the Customer neither owns nor manages any part of the property (“Terminated Property”). Such termination will require prior written notice to Building Engines via the Building Engines Property Change Form of the requested date of change, which will be the date that the subject Property actually changes ownership (“Transaction Date“). If Customer fails to notify Building Engines in advance of the Transaction Date then the termination will be deemed effective as of the date of the notification rather than the Transaction Date for all purposes including, without limitation, invoicing and any fees or payments due by Customer.
3.1 Invoicing. Customer will compensate Building Engines as set forth in an applicable SOW. Building Engines will invoice Customer for its fees, expenses, and costs as set forth in the applicable SOW. Customer will pay each invoice within 30 days from receipt of an invoice. All due payments will earn interest at the rate of the greater of 1.5% per month from the due date until paid or the maximum percentage allowed by law.
3.2 Disputes. Should Customer dispute any amount in any invoice, in good faith, it may do so within 10 days of receipt of the invoice. Customer will pay for all undisputed amounts as described in Section 3.1.
3.3 Taxes. Customer is responsible for the payment of all sales, use, value added, withholdings, and other taxes, and duties however designated by any taxing authority relating to the Work including all applicable Value Added Tax, harmonized and/or similar taxes imposed on any payments due to Building Engines under this Agreement (“Taxes”). Customer will reimburse JLL for Taxes that JLL is required to remit on behalf of Customer. Unless the currency of the invoice is in Canadian Dollars, Australian Dollars, or Euros, should the exchange rate of the currency to U.S. Dollars change such that JLL is due less than at least 5% as compared to the exchange rate as of the effective date of the relevant SOW, JLL reserves the right to adjust the amount of any so impacted invoice to adjust for such change in the exchange rate. Customer will perform its obligations under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable whether under this Agreement, applicable law, or otherwise and whether relating to its breach, bankruptcy, or otherwise.
3.4 If Customer has not paid an invoice within 90 days of receipt of such invoice, Building Engines may suspend or terminate access to any Services or Software and/or require Customer to pay such invoice via credit card or ACH. Customer will be responsible for any associated payment processing fees.
3.5 The License Fees and Subscription Fees (as defined in the applicable SOW) are fixed for the Initial Term, after which Building Engines may increase such fees by up to 5% per annum by giving written notice of any fee increase to Customer at least 30 days prior to the active date of the increase.
4.1 Customer represents and warrants that all access to Software will be by persons authorized by Customer to use and access the Software in accordance with the terms and conditions of this Agreement (“Authorized Users”). In the interest of clarity Authorized Users will have been provided a valid user id and/or password and/or other identifier by Building Engines, for example, through the Software, (“Access Credentials”) at Customer’s request under any SOW prior to accessing or using the Software. No license or other right to utilize or access any Software is granted without a corresponding SOW, and any access to or use of Software without a properly executed SOW is expressly prohibited.
4.2 Building Engines will use commercially reasonable efforts to provide Customer and its Authorized Users with access and use of the Software in accordance with the service levels published by Building Engines at www.buildingengines.com/services-and-support. If the Software does not perform as warranted, Building Engines will, at its own expense, promptly correct any material problem, which correction will constitute Customer’s sole and exclusive remedy for any breach of this warranty. If, after making reasonable efforts to do so, Building Engines cannot provide the correction as described above, either party will be entitled to terminate the SOW pursuant to Article 2, and Customer will be entitled to a refund of any pre-paid fees for the period after the date of termination.
4.3 Grant. Subject to the terms and conditions of this Agreement, Building Engines hereby grants to Customer during the term of the respective SOW the following limited, non-exclusive, non-transferable, non-sublicensable, right to: (a) permit Authorized Users to access and use the Software solely as permitted hereunder in furtherance of Customer’s internal business operations; and (b) make a reasonable number of copies of all Documentation and distribute those copies only to Authorized Users. The foregoing access right is for the sole purpose of enabling Customer (and its Authorized Users) to use and enjoy the benefit of the Software as provided by Building Engines, in the manner permitted by this Agreement and the relevant SOW.
4.4 Restrictions. Customer represents and warrants that neither it, anyone under its control, any employees, agents or subcontractors thereof, nor any Authorized Users will (neither themselves nor cause, authorize, encourage, or otherwise permit others to),whether by action or inaction, directly or indirectly, any (or attempt) of the following: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; (b) modify or create derivative works (as defined under U.S. copyright laws) of the Software; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer any rights or ability to use the Software; (d) use the Software for timesharing or service bureau purposes or otherwise for the benefit of any third party; (e) remove any proprietary notices from the Software, any search results or any other Building Engines materials furnished or made available hereunder; (f) publish or disclose to third parties any detailed description of the operation of the Software without Building Engines’ prior written consent; (g) use the Software to develop a database, online, or similar database service, or other information resource of any kind (print, electronic, or otherwise) for sale to, distribution to, display to or use by others or otherwise create or attempt to create a substitute or similar service or product through use of or access to any of the Software or proprietary related information; (h) use the Software to store, add, or transmit infringing, libelous, or otherwise unlawful or tortious material, or any material in violation of third-party rights (or otherwise use the Software in violation of any instructions or other documentation), including any rights of data privacy; (i) store or transmit virus or other malicious code through the Software; (j) interfere with or disrupt the integrity or performance of the Software or third-party products or data contained therein; (k) attempt to gain unauthorized access to the Software or the related systems or networks of Building Engines or its vendors; (l) store in a retrieval system accessible to the public, transfer, publish, distribute, display to others, broadcast, sell or sublicense the Software, or any portion thereof; (m) pre-fetch, “crawl,” “spider,” or in any non-transitory manner store or cache any information obtained from the Software (including results or any part or copy or derivative thereof), except that Customer may store limited amounts of data provided by the Software for internal use so long as such storage is done temporarily, securely, and in a manner that does not permit use of the data outside of the Software; or (n) use or access of or to the Software by a person other than an Authorized User. Customer agrees, acknowledges, and warrants, without limitation, that no information provided to Building Engines in connection with any SOW, any Confidential Information (as defined herein), nor any activity or service requested by Customer will infringe or misappropriate any right of any third party.
4.5 Hardware. As between the Parties, Customer is responsible for obtaining and maintaining all computer hardware, software, and communications equipment used by Customer or Authorized Users to access and use the Software or otherwise operated or controlled by Customer (“Equipment”) and for paying all third-party fees and third-party access charges (e.g., ISP, telecommunications, bandwidth, and hosting) incurred while using or accessing the Software. Customer will also be responsible for maintaining the security of the Equipment, Customer accounts, passwords, Access Credentials (including administrative and user passwords) and files, and for all uses of Customer accounts or the Equipment. Equipment includes, but will not be limited to, laptop and desktop computers, printers, and mobile devices, and all other devices controlled by or otherwise used by Customer or Authorized Users to access and/or use the Software.
4.6 Authorized Users. Access to the Service requires Access Credentials, and Customer will be responsible for maintaining all Access Credentials provided to it and its Authorized Users in confidence as Building Engines’ Confidential Information. Customer agrees and acknowledges that it is responsible for any and all activities that occur, including any charges incurred, through the Access Credentials, and warrants that only Authorized Users will use or access the Software. Any act or omission of any user will be deemed to be Customer’s act or omission for purposes of this Agreement. Customer agrees to provide written notice to Building Engines promptly (but in no event later than twenty-four (24) hours of becoming aware or suspecting any unauthorized use of an Access Credential; any other breach of security involving any Access Credential, Service, Software, or Customer’s Equipment; or any known or suspected activity prohibited in Section 4.5. Customer will promptly notify Building Engines in writing of any desired revocation of Access Credentials, including with respect to former employees and contractors.
4.7 Third Party Solutions. Under this Agreement, Building Engines provides only the Services and Software. As applicable, there may be code, applications, services, and data that are provided by entities or individuals other than Building Engines, including some that interoperate or integrate with the Software or Services, and/or made available with or for use with the Software (“Third Party Solutions”). Third Party Solutions may be identified in the relevant SOW. Any right to use Third Party Solutions are governed solely by the terms of license agreements that apply to the Third Party Solutions and not under this Agreement or any related SOW. Building Engines does not provide any warranty on any Third Party Solutions or any information or Customer IP (as herein defined) received therefrom, and the Third Party Solutions are not deemed part of the Software or Service. Building Engines makes no warranties or representations whatsoever regarding such Third Party Solutions or any Equipment.
4.8 Nature of Internet. Customer acknowledges that, notwithstanding any obligations of Building Engines, use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent precautions and illegally, or without authorization, gain or attempt to gain access to the Software and data, including Customer’s intellectual property (“Customer IP”) which may be provided by or on behalf of Customer or Authorized Users. Accordingly, Building Engines cannot and does not guarantee the privacy, security, integrity, or authenticity of any information so transmitted over or stored in any system connected to the Internet or Equipment other than as may be expressed herein.
4.9 Suspension. Building Engines at its discretion, without obligation to Customer, and without limiting any other remedy available at law or equity, may suspend or terminate access to any Service or Software of one or more Authorized Users or Customer in order to: (a) prevent actual, threatened, or suspected damage to or degradation of or to the Software, Customer IP, or any other system; or (b) comply with any Law which requires immediate action. If suspended, Building Engines will, as soon as commercially reasonable, (1) provide written notice to Customer and (2) restore access to the Software as soon as the event giving rise to the suspension has been resolved to Building Engines’ reasonable satisfaction.
4.10 Received Data. Notwithstanding anything to the contrary herein and without limiting any other Section of this Agreement, Customer represents and warrants that all electronic data or other information received by Building Engines (or its Affiliate) through the Software (“Received Data”), and all portions thereof (a) was collected in accordance with all Applicable Law, including Data Protection Laws; (b) does not contain any virus, malicious code or other code which may interfere with or otherwise impair any computer or system of Building Engines or its Third Party Providers) or functionality thereof; and (c) alone or in combination with, e.g., any other data, hardware, or software or any use thereof by Building Engines or its Affiliates does not nor will cause Building Engines (or its Third Party Providers) to infringe or otherwise misappropriate any right, including Intellectual Property, of any third party. Building Engines makes no representations whatsoever with regards to the Received Data, including the accuracy, completeness, integrity, or validity of such or of any report, database, or compilation containing any Received Data (or portion thereof); and Customer will be solely responsible for such.
5.1 Each Party may have access to information that is confidential to the other Party (“Confidential Information“). Confidential Information will include all information that is labeled confidential or would reasonably be considered confidential, including all data, pricing, materials, policies, procedures, software, manuals, methods, and/or information of any kind or nature provided, as well as this Agreement, and all related SOWs. Building Engines’ Confidential Information will include, but will not be limited to, (a) the Software; (b) all communications discussing price; (c) all invoices; and (d) all Access Credentials. Each Party represents and warrants that it has authority to disclose its Confidential Information to the other Party.
5.2 A Party’s Confidential Information will not include information that: (a) is or has become a part of the public domain through no act or omission of the receiving Party; or (b) as documented in written records, was in the receiving Party’s lawful possession prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (c) is disclosed to the receiving Party by a third party; or (d) as documented in written records, is/was independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
5.3 A Party may disclose Confidential Information as required by Law or governmental or regulatory ruling provided, however, that before making such disclosure, the Party of whom disclosure is required will, as commercially reasonable, give the disclosing Party written notice and an adequate opportunity to interpose an objection and/or take action to assure confidential handling of such information.
5.4 The Parties agree to hold each other’s Confidential Information in confidence, as detailed in this Article 5, after the termination or expiration of the SOW under which such information was disclosed. Customer agrees that Building Engines will be permitted provide Customer IP and Confidential Information to other vendors or service providers of Customer or Building Engines, as may be necessary to effectuate the specific services referenced in the respective SOW or to otherwise improve services provided.
5.5 Each Party agrees to use the same degree of care that it uses to protect its own confidential information of a similar nature and value, but in no event less than a reasonable standard of care, to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement. Notwithstanding anything to the contrary, a Party may share or disclose Confidential Information of the disclosing Party to its Affiliates, but will remain liable for breaches of this Article 5 by such Affiliates.
5.6 Notwithstanding the foregoing, Customer hereby grants Building Engines a non-exclusive, perpetual, irrevocable, royalty-free license to create Aggregated Data (defined herein) using Customer Data. Notwithstanding anything else in this Agreement or otherwise, Building Engines may monitor Customer’s and Customer’s Authorized Users’ use of the Services and use data and information related to such use, and Other Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Data”), which will not be considered Confidential Information. Building Engines owns all rights, title and interest in the Aggregated Data. Customer agrees that Building Engines may compile Aggregated Data based on data provided by or on behalf of Customer or any Authorized User, Other Information (as defined below), and information input by other customers into the Services, and Customer agrees that Building Engines may use Aggregate Data to the extent and in the manner permitted by applicable law or regulation.
6. Intellectual Property
6.1 Customer Data. Building Engines acknowledges that, as between Building Engines and Customer, Customer owns and will retain all right, title, and interest in and to (including copyright, patent, trade secret, trademarks, and all other intellectual property rights associated with) (a) the data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or its Authorized Users and received through the Software, (b) other information input into the Services by Customer or its Authorized Users (collectively, “Other Information”).
6.2 Building Engines IP. Customer acknowledges that Building Engines owns and will retain all right, title, and interest in and to (including copyright, inventions, discoveries, patents, trade secrets, trademarks, and all other intellectual property rights throughout the world) the Software and the processes, procedures, methods, trade secrets, and proprietary know-how associated with or related to the Software or Services or otherwise developed in performing or related to its activities under this Agreement or any SOW (“Building Engines IP”). This Agreement conveys no right or interest in the Software, Services, or any Building Engines IP other than the express limited licenses for use as expressly provided in this Agreement for each specific SOW. No other license, express or implied, is provided by this Agreement or any SOW. All rights not expressly granted by Building Engines to Customer through this Agreement and are necessarily reserved by Building Engines and its licensors. For purposes of clarity, Customer IP does not include any right, title, or interest in or to the Software, Building Engines IP, Building Engines’ Confidential Information, or any intellectual property associated therewith.
7. Privacy and Security of Personal Data.
8. Warranties and Limitation of Liability.
8.1 Limited Warranty. Building Engines warrants that the Software will perform substantially in accordance with system requirements as detailed in the respective SOW.
8.2 Exceptions to Limited Warranty. This limited warranty will not extend to problems due, to (a) failures or problems relating to or caused by any hardware or software external to the Software or not provided by Building Engines, including Equipment or Third Party Solutions; (b) alterations to the Software other than those performed or authorized in writing by Building Engines, including alterations which involve writing to the Software database; (c) accident, negligence, or misuse of the Software (by a party other than Building Engines); (d) operation of the Software (by a party other than Building Engines) outside the specifications or other environmental requirements of the accompanying documentation or for any purpose other than as contemplated by Building Engines; (e) the importation of invalid data from other systems or any other database installed or used with the Software; (f) any problems relating or connected to an activity in violation of Section 4.4; or (g) any breach of Customer under this Agreement or any SOW.
8.3 Customer’s Remedies. Upon receipt by Building Engines of Customer’s written notice of a material non-conformity of the Software or of any other failure, Building Engines’ entire liability and Customer’s sole and exclusive remedy will be for Building Engines to use commercially reasonable measures to correct or to provide a work-around, taking into account the severity.
8.4 Disclaimer of Other Warranties. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY SOW, OTHER THAN EXPRESSLY PROVIDED IN THIS AGREEMENT: (A) BUILDING ENGINES DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SOFTWARE OR SERVICES WILL MEET ALL OR ANY OF CUSTOMER’S NEEDS; (B) ALL SERVICE, SOFTWARE, AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND; (C) ALL OTHER WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED BY BUILDING ENGINES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR USE OR FREEDOM FROM INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR ARISING FROM COURSE OF FAIR DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND (D) BUILDING ENGINES EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SOFTWARE AND ALL SERVICES OR OBLIGATIONS REFERENCED BY OR PROVIDED UNDER THIS AGREEMENT OR ANY SOW.
8.5 CUSTOMER ACKNOWLEDGES THAT BUILDING ENGINES DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET OR ANY EQUIPMENT OR THIRD PARTY SOLUTIONS, AND THAT THE SOFTWARE AND ANY SERVICE PROVIDED BY BUILDING ENGINES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
8.6 TO THE MAXIMUM EXTENT PERMITTED BY LAW, BUILDING ENGINES’ TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID TO BUILDING ENGINES FOR THE PARTICULAR SERVICE GIVING RISE TO THE LIABILITY UNDER THE RELEVANT SOW IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY HEREUNDER.
8.7 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING LOSS OR INTEGRITY OF DATA, LOSS OF PROFITS, COST OF PROCUREMENT OR REPLACEMENT GOODS AND SERVICES, COVER, OR RELIANCE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR AND SOW OR THE DELIVERY, USE OR PERFORMANCE OF ANY SERVICE, OR THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
9.1 Indemnification by Building Engines. Building Engines hereby agrees to defend, indemnify, and hold harmless Customer, and its successors and assigns, subsidiaries, Affiliates, officers, directors, shareholders, personnel, employees, and agents of any kind (“Customer Indemnitees”) from and against all third party actions, suits, claims, demands, or investigations including all resulting damages, judgments, losses, and liabilities (including reasonable costs, expenses, and attorneys’ fees) to the extent arising out of failure to comply with applicable Laws by Building Engines or its employees or agents (“Customer Claims“) as well as for any Infringement Claims, in accordance with Section 9.5, below. This obligation will only be effective and enforceable to the extent that Customer Claims do not arise, at least in part, from the negligence, intentional misconduct, or breach of any obligations of this Agreement by a Customer Indemnitee or an Authorized User.
9.2 Indemnification by Customer. Customer will defend, indemnify, and hold harmless Building Engines, and its successors and assigns, Affiliates, officers, directors, shareholders, personnel, employees, and agents of any kind (“Building Engines Indemnitees”) from and against all third party claims, investigations, demands, damages, judgments, losses, and liabilities (including reasonable costs, expenses, and attorneys’ fees), to the extent arising out of: (a) use of Customer IP, Equipment, or any portion of any Third Party Solutions by Building Engines or Customer; (b) any prohibited use of the Software by the Customer or its users or Authorized Users; (c) any breach of Laws or this Agreement by Customer, its employees or agents, any Customer Indemnitee, or any Authorized User, including Laws applicable to Personal Data (“Building Engines Claims”). This obligation to defend, indemnify, and hold harmless will only be effective and enforceable to the extent that such Building Engines Claims do not arise from the negligence or intentional misconduct of or by Building Engines.
9.3 It is agreed that a Party seeking indemnification will promptly notify the other Party in writing in the event it becomes aware of any claim made, brought, or instituted against it based upon or arising out of the performance of this Agreement for which the indemnitee will seek indemnification. Notwithstanding the foregoing, the failure to give any such notice will not disqualify indemnitee from the right, or otherwise affect in any manner any right of indemnitee to receive payments of indemnifiable amounts unless the indemnifying Party’s ability to defend in such claim is materially and adversely prejudiced by the indemnitee’s failure to give notice.
9.4 Any Party liable to provide indemnification hereunder will be entitled to control the defense and settlement of any claim on which it is liable. The Parties will reasonably cooperate in the investigation, defense, and settlement of any claim. Any indemnifying Party will have no obligation to defend, indemnify or hold harmless an indemnitee with respect to claims against an indemnitee which were settled by the indemnitee without the prior written consent, which consent may not be unreasonably withheld, of the indemnifying Party.
9.5 Indemnification for IP Infringement. Building Engines will hold harmless and indemnify Customer Indemnitees against third party suits that claim that Building Engines’ Software or Services, without combination, directly infringe the intellectual property rights of a third party (“Infringement Claim”). At Building Engines’ option, Building Engines will, at its own expense, defend any such Infringement Claim, and Building Engines will pay all damages including attorneys’ fees, damage awards, and settlement payments it has approved. Building Engines will have no obligation to indemnify for Infringement Claims should (a) the Services or Software be combined or used with products, software, Equipment, or services not provided by Building Engines or (b) the Infringement Claim is anyway related to Building Engines’ implementation of written specifications or requirements from Customer for specific functionality where such infringement or claim could have been avoided in the absence of such functionality.
10. Force Majeure.
10.1 Neither Party will be considered in default of the performance of any obligation under this Agreement to the extent that the performance of the obligation is prevented, limited, or delayed by fire, flood, earthquake, failure of equipment, explosion, strike, acts of terrorism, war, insurrection, embargo, government requirement, civil or military authority, act of God, or any other event, occurrence, or condition which is not caused, in whole or in part by that Party and which is beyond the reasonable control of that Party.
11.1 Independent Contractor Relationship. Neither this Agreement nor the performance by Building Engines of the Services identified herein or in any SOW will be construed to render unto Building Engines any of the rights or benefits available to Customer employees. Notwithstanding anything to the contrary, Customer will be liable for all acts and omissions by users of the Software.
11.2 No Third Party Beneficiaries. Notwithstanding anything to the contrary (other than in connection with any right related to indemnification), (a) it is the Parties’ intention that this Agreement will not be construed to give any party other than the Parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement and (b) this Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the Parties to this Agreement and their successors and assigns.
11.3 Notice. Any notice, statement, copy, or other communication provided for in this Agreement, will be in writing and will be considered as duly delivered upon actual receipt. Other than communications relating solely to invoices and billing matters covered by Article 3, all notices provided by Customer to Building Engines will be addressed to JLLTLegal@jll.com, and all notices to Customer will be sent to the email address currently maintained in Building Engines’ records.
11.4 Governing Law. The provisions of this Agreement, any SOWs, and any related documents will be governed by and construed in accordance with the laws of New York, USA (excluding any conflicts-of-law rule or principle that might refer same to the laws of another jurisdiction). Each of the Parties represents, warrants, and covenants that it has had ample opportunity to consider entering into this Agreement and has had an opportunity to consult with counsel regarding this Agreement to negotiate changes to this Agreement prior to executing the same, and the neither the Uniform Commercial Code nor the United Nations Convention on Contracts for the International Sale of Goods will apply.
11.5 Dispute Resolution/No Indirect Damages. In the event of a dispute arising out of or relating directly or indirectly to this Agreement or any SOW, the Parties will first attempt to settle such dispute by negotiation and consultation between the senior executives of Customer and Building Engines and other parties familiar with this Agreement and the SOW. The Parties agree that in the event direct negotiations are unsuccessful, all actions and proceedings arising out of or relating directly or indirectly to this Agreement, all SOWs, or any ancillary agreement, or any other related obligations will be litigated solely and exclusively in the state or federal courts located in New York County, New York, USA, and that such courts are convenient forums. Each Party hereby submits to the personal jurisdiction of such courts for purposes of any such actions or proceedings, and expressly waives objection thereto. THE PARTIES EXPRESSLY AGREE TO WAIVE AND RELINQUISH THEIR (AND THEIR AFFILIATES’) RESPECTIVE RIGHT TO A TRIAL BY JURY ON ANY AND ALL ISSUES.
11.6 Waiver. The Parties may waive any rights or obligations of this Agreement only by a writing executed by the Party or Parties against whom the waiver is sought to be enforced. No failure or delay (a) in exercising any right or remedy, (b) in requiring the satisfaction of any condition under this Agreement or any SOW, and (c) no act, omission, or course of dealing between the Parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver against any other person.
11.7 Publicity. Building Engines has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in Building Engines business development and marketing efforts, including Building Engines’ web site. Customer may opt out of this at any time by submitting a request to firstname.lastname@example.org in writing. Customer has no right to reference and use Building Engines’ name and trademarks without Building Engines’ prior written consent.
11.8 Severability. The invalidity or unenforceability of any provision hereof will in no way affect the validity of enforceability of any other provision hereof.
11.9 Compliance Provisions.
11.9.1 Anti-Bribery. Pursuant to this Agreement, each Party represents that it has not and agrees that it will not violate the laws and regulations of the United States of America (including the Foreign Corrupt Practices Act), any local laws of the country of operation, the country in which business is being conducted, or any other relevant country as applicable (including the United Kingdom Bribery Act of 2010) pertaining to bribery, improper payments, and kickbacks.
Pursuant to this Agreement, each Party agrees that it has not and will not, either directly or indirectly, engage in bribery, or offer, or promise, or solicit, or make, or receive any “improper payment”, including cash, loan, gift, travel, entertainment, hospitality, facilitation payment, kickback, political or philanthropic contribution, anything of value for the benefit of the Parties or its personnel or any entity or individual associated with the Parties or its personnel, or for any other perceived benefit as an inducement to act or refrain from acting, or in order to improperly obtain or retain a business advantage in relation to this Agreement.
11.9.2 Trade Controls. Customer represents and warrants that it will comply with all applicable U.S. and foreign export, import, and customs laws and regulations, including the Export Administration Regulations (“EAR”), the Foreign Trade Regulations (“FTR”), the sanctions laws, regulations, and executive orders administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the U.S. Anti-boycott Laws as such term is defined below (collectively, the “Trade Control Laws”) at its sole cost and expense. In the event of a conflict between any U.S. and foreign Trade Control Laws, the U.S. Trade Control Laws will prevail. Customer agrees that with regard to any technical data provided to Building Engines or uploaded to its services, Customer has accurately (a) determined the applicable export control classifications and licensing requirements, (b) obtained any necessary export licenses, and (c) submitted any necessary export clearance declarations. If Customer does not provide a Customer Export Classification Form to Building Engines, Customer is deemed to have certified to Building Engines that the respective technical data are classified as EAR99. Customer must notify Building Engines before providing any technical data that is controlled under Trade Control Laws, if any, and clearly mark such data as export-controlled. Building Engines will not be liable to Customer for any loss or expense if Customer fails to comply with the applicable Trade Control Laws or with the provisions set forth herein. Customer will immediately notify Building Engines if Customer becomes listed on, or owned or controlled by anyone on, any restricted persons list published by the U.S. Departments of Commerce, Treasury, or State, the European Union, or the United Kingdom, or if Customer’s export privileges are fully or partially denied, suspended, or revoked. Notwithstanding anything to the contrary set forth herein, Building Engines may disclose Confidential Information to government agencies as Building Engines may deem reasonably necessary for the purpose of disclosing, resolving, or remediating any violation or potential violation of any applicable Trade Control Laws.
11.9.3 Customer represents and warrants, without limitation, at all times that (a) neither it nor any Authorized User is/are 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 (b) neither it nor any Authorized User is/are not listed on any U.S. Government list of prohibited or restricted parties, including any government, country, corporation or other entity, group or individual with whom or any entity which the Office of Foreign Asset Controls (“OFAC”) sanctions prohibit Building Engines from engaging in transactions (including any person that appears on the current OFAC list of Specially Designated Nationals and Blocked Persons (the “SDN List”).
11.10 Assignment. Neither this Agreement, nor any of the rights, interests, or obligations hereunder (including SOWs) will be assigned by any of the Parties hereto (whether by operation of law or otherwise) without the prior written consent of the other Party. Either Party may, however, assign this Agreement together with all related SOWs to an Affiliate, by providing notice thirty days prior to such assignment. Any attempted assignment not in compliance with this Section 11.11 will be void.
11.11 Survival. The Parties’ obligations of this Article 11, Sections 2.6, 8.4, 8.6, 8.7, 9.2, and 9.3, and all of Articles 3, 4, 5, 6, and 7, will survive the termination of this Agreement.
11.12 Entire Agreement. No agreements between the Parties (or any Affiliates) relating directly or indirectly to the subject matter or any obligations in this Agreement will impact or modify any term or obligation of this Agreement unless such agreement is made as an amendment or otherwise is governed by the terms, notwithstanding anything to the contrary in such agreement. This Agreement and all related SOWs constitute the entire agreement between the Parties pertaining to the subject matter of this Agreement and supersedes and precludes all other agreements, understandings, negotiations, and discussions, whether oral or written, between the Parties. Notwithstanding anything to the contrary, only the terms and conditions contained in this Agreement (including its attachments, amendments, and documents incorporated herein) and the relevant SOW (and its Change Orders) will form binding commitments on the Parties related to the Services described herein. In the interest of clarity, no terms or conditions contained in any other document, e.g., a Purchase Order, will be enforceable against either Party and will be null and void.
LAST MODIFIED 04/12/2023