Terms & Conditions of Service
Terms & Conditions of Service
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF SERVICE (“TOS”), WHICH ALONG WITH THE LICENSE & SERVICE ORDER (“ORDER”), ITS EXHIBITS AND ANY RIDERS (TOGETHER THE “AGREEMENT”) CONSTITUTE THE AGREEMENT BETWEEN THE ENTITY IDENTIFIED AS THE CLIENT ON THE APPLICABLE ORDER (“YOU” or “CLIENT”), AND BUILDING ENGINES, INC. AND ITS SUBSIDIARIES (“COMPANY”). BY EXECUTING AN ORDER THAT REFERENCES THE SOFTWARE AND/OR SERVICE AND THESE TERMS AND CONDITIONS, OR BY ACCESSING OR USING THE SOFTWARE AND/OR SERVICE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT AND THE APPLICABLE ORDER TOGETHER REPRESENT THE ENTIRE AGREEMENT CONCERNING THE SOFTWARE AND/OR SERVICE BETWEEN THE PARTIES AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES, INCLUDING, WITHOUT LIMITATION, THE TERMS OF ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY YOU OR OTHER TERMS AND CONDITIONS OR AGREEMENTS, WHICH SHALL BE OF NO FORCE OR EFFECT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
The Company 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 Company and/or posting a notice on our 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. The Company 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.
- “Additional Properties” means Properties added to the Software subsequent to the Properties identified in the initial Order, as described in Section 1.3.
- “Authorized User(s)” means users authorized by Client to use the Service and the Software either through username and password sharing or through provision of a username and password to the new users by Client or Company, at Client’s request.
- “Company Data” means all anonymized user data assembled and normalized in aggregated form, including but not limited to anonymized Client Data aggregated with anonymized Company Data of other Company clients, and other non-system data.
- “Client” means the organization that executes the Order referring to these TOS, and any of its subsidiaries.
- “Client Data” means any and all data entered into the Software by Client or an Authorized User, or by Company upon Client’s or an Authorized User’s request.
- “Initial Term” means the period commencing on the Subscription Start Date provided in the Order and continues through the end of the specified term in the Order.
- “Order” means the primary document, signed by Client, referencing these TOS and outlining Client’s portfolio of Properties for which Company will deploy the Service(s) purchased by Client, any ancillary terms or conditions, and the Subscription Fee Client is required to pay Company for authorized access to the Software and/or Service(s) for those Properties.
- “Properties” means the buildings owned or managed by Client and specified in an Order.
- “PSA” means a Professional Services Agreement for the provision of professional services, reviewed and executed by both Client and Company, including any statements of work or work orders referring to it.
- “Service” or “Services” means the managed services, provided by Building Engines and/or its subsidiaries, described as that Service or Services is referenced in the License and Service Order and detailed on noted URL(s) on the Company websites.
- “Set-up Fee” means the one-time amount Client shall pay to Company for the work required to fully deploy on the Software each Property listed in an Order.
- “Software License” means authorized access to the Software granted by the Company to Client for use in the building or buildings listed in Exhibit A to this Agreement.
- “Service Subscription” means authorized access to the support and managed services provided by the Company to Client for use in support of its Software in the building or buildings listed in Exhibit A to this Agreement.
- “Software” means the web-based and/or mobile application developed and maintained by Company and/or its subsidiaries, as that Software is referenced in the License and Service Order and detailed on noted URL(s) on the Company website
1. Software License Grant, License Limitations and Service Subscription
1.1 When selected in the License and Service Order, and upon payment of the License Fee, and subject to the terms and conditions of this Agreement, the Company grants to Client a limited, non-exclusive, non-sublicensable and non-transferable license to access, via the web or mobile service, and to use the Software, as defined in the applicable Order, during the License Term, strictly for Client’s own internal business purposes and to permit any Authorized Users to access and use the features and functions of the Software as contemplated by this Agreement (the “License”). The License to the Software is limited to employees of the Client, Client contractors and Client-owned or Client-managed building occupants.
1.2. When selected in the License and Service Order, and upon payment of the Annual Service Subscription Fee, and subject to the terms and conditions of this Agreement, the Company grants to Client access to use its Subscription Services as defined in the applicable Order, during the License Term, strictly for Client’s own internal business purposes and to permit any Authorized Users to access and use the Services as contemplated by this Agreement (the “Subscription”).
1.3. The License to the Software and Subscription Services are for Client’s use in connection with the management and/or ownership of the locations specified on the applicable License & Service Order, for the square footage specified on that Order.
1.4. Except as expressly permitted herein, Client shall not (and shall not permit any third party, including Users, to) (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Software in any way; (b) modify or make derivative works based upon the Software; (c) create Internet “links” to the Software or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (d) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from the Software or any part thereof; (e) use the Software for commercial or competitive purposes, including to develop a competitive product or service, build a product using similar ideas, features, functions or graphics of the Software, or copy any ideas, features, functions or graphics of the Software; (f) interfere in any manner with the operation of the Software or attempt to access the Software through any unapproved interface; or (g) otherwise use the Software in any manner that exceeds the scope of use permitted under this Section 1 or in a manner inconsistent with applicable law, the documentation, or this Agreement.
1.5. Client shall not (and shall not permit any third party, including Users, to: (a) store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate of third party privacy rights; (b) store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (c) interfere with or disrupt the integrity or performance of the Software or the data contained therein; or (d) attempt to gain unauthorized access to the Software or its related systems or networks.
2. Client Obligations
2.1. Client agrees to use the Software for the sole and exclusive purpose of managing Properties listed in any License & Service Order and any Properties added pursuant to Section 2.2. Client will (i) be responsible for its Authorized Users’ compliance with these TOS, (ii) be responsible for the content of Client Data and provide the Company with full, good faith cooperation, including accurate billing information, (iii) be responsible for issuing, disseminating, and canceling passwords to Authorized Users on an ongoing basis, and for taking steps to maintain appropriate security regarding passwords, and (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify Company promptly if it becomes aware of any such unauthorized access or use.
2.2. Additional Properties: Client may add Additional Properties to the Order for inclusion in the Service at any time by executing a new Order on the form provided by Company.
3. Fees, Other Fees and Payment
3.1. Software License Fees: Software License Fees: Client agrees to pay the License Fee set forth in each License & Service Order for the use of the Software and receipt of the Service(s) in accordance with the payment terms specified in the Order and in Section 3.6 and otherwise in these TOS. Client will be billed according to the billing cycle specified in the License & Service Order, which may include a prorated amount for a fractional license period.
(a) For square-foot based pricing, fees are measured per square foot, fixed and charged on an annual basis.
(b) For transactional-based pricing, fees will be measured and charged according to Client’s actual periodic usage with pre-payment license fees billed according to initial agreed-upon estimates as described and priced in your License & Service Order. Client and Company will calculate “settle-up” charges at the end of each measurement period with overages charged at a 10% premium over your agreed-upon rate. Extra usage credits may be purchased in advance to avoid overage charges.
The License Fees are fixed for the Initial Term, after which Company may increase License Fees by up to 5% per annum by giving written notice of any fee increase to Client at least thirty (30) days prior to the active date of the increase. All prices are in US dollars.
3.2. Service Subscription Fees: For clients subscribing to recurring services as itemized on the Order, Client agrees to pay the Service Subscription Fee set forth in each License & Service Order for the use and receipt of the Service(s) in accordance with the payment terms specified in the Order and in Section 3.6 and otherwise in these TOS. Client will be billed according to the billing cycle specified in the License & Service Order, which may include a prorated amount for a fractional subscription period. The Subscription Fees are fixed for the Initial Term, after which Company may increase Subscription Fees by up to 5% per annum by giving written notice of any fee increase to Client at least thirty (30) days prior to the active date of the increase. All prices are in US dollars.
3.3. Set-up Fees: Client agrees to pay the one-time Set-up Fee specified in an Order and in accordance with the payment terms specified in Section 3.6.
3.4. Customization and Professional Services Fees: Company may provide custom development or other professional services (“Work”) to Client upon request. All Work to be performed by Company will be specified, priced at its then current rates, and scheduled in a separate PSA, provided that Company will have no obligation to provide such Work, and Client will have no obligation to pay for such Work, until the PSA is signed by both parties.
3.5. Sales & Use Taxes: All fees payable to Company by Client hereunder are exclusive of any sales taxes, use taxes, value added taxes and similar taxes applicable to the provision of Services, specifically excluding any taxes based on Company’s net income. If Company incurs or is required to collect or pay any federal, state or local taxes based on the Service or other deliverables, such taxes will be billed to and paid by Client. Client must provide Company with accurate information to help it to determine whether any such taxes are due.
3.6. Payment: All Fees are due and payable by Client to Company for all listed Properties once the Order is executed by Client and in the amount specified in the Order. Upon execution of the Order, Company will begin billing Client immediately for the Fees for all Properties listed in the Order with License and Subscription Fees to begin from the Start Date as detailed in the Order. Company will submit invoices specifying all Set-up. Licenses and Subscription Fees due and payable to Company by Client to the billing address specified by Client in the Order, which address must be kept up to date by Client. All Fees are due and payable pursuant to the payment terms and address specified in the Order. All Fees not paid within the payment term specified in the Order will be subject to a 1% late fee per month.
4. Term & Termination
4.1. Term: The term of this Agreement commences on the Start Date provided in the Order 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 3.1 and 3.2 unless one party notifies the other in writing that they wish to terminate the agreement with at least ninety (90) days advance notice of the renewal date.
4.2. Breach: Either party may terminate the Order and these TOS if the other party commits a material breach of the Order or these TOS and fails to remedy the breach within thirty (30) days after receiving written notice of the breach from the non-breaching party, describing the breach in reasonable detail.
4.3. Effects of Termination: Upon termination or expiration of the Order and these TOS, (a) Client’s access to the Service and the Software will terminate; (b) each party will promptly return or certify in writing the destruction of the other party’s Confidential Information (defined below) not more than thirty (30) days following the effective date of termination or expiration; and (c) each party will continue to comply with its confidentiality obligations under Section 4.0.
5. Confidentiality and Proprietary Rights
5.1. Confidential Information: During the course of the subscription term, Company and Client will have access to each other’s “Confidential Information,” which means any information that either Company or Client holds as confidential or proprietary, including, but not limited to: (a) non-public information about either party or its property (tangible or intangible, including but not limited to the Properties), (b) non-public information of third parties held by such party, (c) non-public and other personal information about current or former employees, tenants or other persons associated with a party or other individuals, and (d) any other information specifically identified in writing by a party as confidential. Client Data is Client’s Confidential Information. Each party is the sole owner of all its Confidential Information.
5.2. Obligations: The parties agree to hold each other’s Confidential Information in confidence; to use commercially reasonable administrative, physical and technical safeguards to guard against the unauthorized access, alteration, destruction or loss of such Confidential Information; to immediately notify the other party upon learning of any breach in the security of Confidential Information; and, unless required by law, regulation or legal process in accordance with Section 5.3, not to make each other’s Confidential Information available to any third party. Client acknowledges that the Software and Service, and any Company services and related documentation, contain valuable trade secrets and that Company and/or its licensors own and retain all intellectual property rights, title and interest therein. Each party agrees that any breach of such party’s obligations with respect to Confidential Information could result in irreparable injury for which money damages may not be an adequate remedy. Therefore, the disclosing party will be entitled to seek injunctive relief with respect to a breach of this Section 4.0. Company will cooperate with Client from time to time, at Client’s request (and if Client seeks assistance beyond enabling the downloading of information, at Client’s expense), to transfer to Client copies of any and all of Client’s Confidential Information.
5.3. Exceptions: A party’s Confidential Information does not include information that the receiving party can show with documentary evidence: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the other party’s lawful possession prior to disclosure; or (c) is developed independently by the receiving party without reference to or use of the disclosing party’s Confidential Information. If a receiving party believes that it will be required to disclose Confidential Information of the disclosing party pursuant to a subpoena, court order or other legal obligation, it will immediately notify the disclosing party to provide the disclosing party an opportunity to seek a protective order or other appropriate remedy, and the receiving party will furnish only that portion of the Confidential Information legally required and will exercise its reasonable best efforts to obtain a protective order or other assurance that the Confidential Information will be treated as confidential upon terms substantially the same as contained in Section 5.2.
6.1. Limited Warranty: Company warrants to Client that (a) the Software will provide the features and functions listed in the Order and accompanying URLs and (b) the Software will be available in accordance with the service levels published by Company at: www.buildingengines.com/services-and-support. If the Software does not perform as warranted, Company will, at its own expense, promptly correct any material problem, which correction will constitute Client’s sole and exclusive remedy for any breach of this warranty. If, after making reasonable efforts to do so, the Company cannot provide the correction as described above, either party will be entitled to terminate the Order pursuant to Section 4, and Client will be entitled to a refund of any pre-paid fees for the period after the date of termination.
6.2. DISCLAIMERS: NOTWITHSTANDING THE FOREGOING, COMPANY DOES NOT WARRANT THAT CLIENT’S USE OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. OTHER THAN THE EXPRESS WARRANTIES CONTAINED IN THESE TOS, COMPANY MAKES NO REPRESENTATION OR WARRANTY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SERVICE AND THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM AVAILABILITY OR RELIABILITY, AND ANY IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. NO REPRESENTATION OR STATEMENT WILL BE BINDING UPON COMPANY AS A WARRANTY OR OTHERWISE UNLESS EXPRESSLY CONTAINED OR REFERENCED IN AN ORDER OR THESE TOS. CLIENT FURTHER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CLIENT DATA OR CONFIDENTIAL INFORMATION. ANY SERVICE THAT COMPANY IS NOT CONTRACTUALLY OBLIGATED TO PROVIDE, BUT THAT COMPANY MAY PERFORM FOR CLIENT AT CLIENT’S REQUEST AND WITHOUT ANY ADDITIONAL COMPENSATION, IS PROVIDED ON AN “AS IS” BASIS. THE COMPANY DOES NOT PROMISE TO UNDERSTAND OR ENFORCE ANY REGULATORY REQUIREMENTS APPLICABLE TO CLIENT’S BUSINESS. CLIENT ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM ITS AUTHORIZED USERS’ USE OF THE SOFTWARE OR SERVICES OR AND FOR CONCLUSIONS DRAWN FROM SUCH USE.
7. Mutual Indemnification
7.1. By Company: Company agrees to defend Client and its officers, directors and employees (“Client Indemnitees”) against any third party claims alleging that the Service or Software as delivered by Company infringes or violates any third party intellectual property rights, and to indemnify and hold harmless such Client Indemnitees for any amounts awarded against them in judgment or settlement of such claims, including court costs and reasonable attorney’s fees. Company has no liability if the alleged infringement or violation is based on: (i) a modification of the Software by Client or Client’s agent, (ii) Client’s use of the Software in a manner contrary to the written instructions given to it by Company, or (iii) the use of the Software after notice of the alleged or actual infringement from Company or any appropriate authority. In the event of such third-party claim, Company shall, at its option, modify the Software to avoid the claim while maintaining substantially similar functionality or obtain a license to resolve the claim. In the event Company is unable to achieve either of the foregoing on reasonable commercial terms, Company may terminate the Order and provide Client a pro rata refund of any prepaid but unearned fees.
7.2. By Client: Client agrees to defend Company and its officers, directors and employees (“Company Indemnitees”) against any third-party claims arising from the transmission, storage or use of Client Data (whether based on a theory of infringement, unlawful discrimination, defamation or otherwise), and to indemnify and hold harmless such Company Indemnitees for any amounts awarded against them in judgment or settlement of such claims, including court costs and reasonable attorney’s fees.
7.3. Procedure: The indemnifying party’s obligations under Sections 7.1 and 7.2 shall be subject to the following: (a) the indemnifying party is given prompt notice of such claim by the party seeking indemnification, provided that failure to give prompt notice shall relieve the indemnifying party of its indemnification obligation only to the extent that the delay materially prejudices the indemnifying party’s ability to defend against the claim(s); (b) each party provides reasonable cooperation to the other in the defense and settlement of such claim; and (c) the indemnifying party is given sole authority to defend or settle the claim, as long as no settlement requires the indemnified party to pay any amount or admit liability or wrongdoing.
8. Limitation of Liability
8.1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR REVENUE, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, NEGLIGENCE OR TORT (INCLUDING STRICT LIABILITY). THE FOREGOING EXCLUSION WILL NOT REDUCE EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.0.
8.2. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY OTHER THIRD PARTY IN CONNECTION WITH THE ORDER AND THESE TOS EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF SUBSCRIPTION FEES AND PROFESSIONAL SERVICES FEES PAID OR PAYABLE BY CLIENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM, REGARDLESS OF THE FORM OF CLAIM OR ACTION. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS BETWEEN COMPANY AND CLIENT AND THAT COMPANY’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. THE FOREGOING EXCLUSION WILL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.0.
8.3. IN THE EVENT OF ANY CORRUPTION OR DESTRUCTION OF CLIENT DATA, CLIENT’S SOLE AND EXCLUSIVE REMEDY WILL BE FOR COMPANY TO RESTORE THE LOST OR DAMAGED CLIENT DATA FROM THE LATEST BACKUP OF SUCH CLIENT DATA MAINTAINED BY COMPANY IN ACCORDANCE WITH ITS ARCHIVAL PROCEDURE. COMPANY WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION OR DISCLOSURE OF CLIENT’S CONFIDENTIAL INFORMATION CAUSED BY ANY THIRD PARTY.
9.1. Client Data: Client will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or usage rights of all Client Data. In the event the applicable Order is terminated, Company will use its best efforts to make available to Client the Client Data at the time of termination. Company reserves the right to withhold, remove, and/or discard Client Data 30 days after termination of the Order.
9.2. Company Data: Notwithstanding the foregoing, Company may use Company Data for the purposes of benchmarking, trend analysis, performance measurement for Client and Company’s other clients, as well as other similar uses, and may use such data to target and achieve Software improvements, as well as for other related reporting and performance measurement purposes.
9.3. HIPAA: Neither party shall disclose to the other party any personal health information governed by the Health Insurance Portability and Accountability Act (HIPAA) or related statutes or regulations in connection with these TOS.
10. Third-Party Providers
The Company’s products and/or services may include software, data, or services provided by third-party providers. In addition to the rights and restrictions set forth in any agreement(s) that Client has entered into with the Company, Client’s use of Company products and/or services is subject to the following terms:
10.1 Third-party providers are third-party beneficiaries of the Company’s rights and remedies under the agreement(s) between Client and the Company. Client agrees to comply with all applicable third-party provider terms. Those terms may be supplied to Client within the Company’s products and/or services or directly by the third-party provider. The company is from time-to-time required to provide Client contact details to Company’s third-party providers to the extent that each needs such details in order to enable them to execute their contractual responsibilities.
10.2 Client must obtain all prior approval for control and redistribution of any and all third-party provider data, software or services. Client is responsible for any and all costs and fees associated with agreements entered into with any such third-party provider. If a third-party provider ceases to make its service available to the Company or requires the Company to suspend or terminate the provision of all or any part of its services to Client, or if the Company terminates its arrangements with the third-party provider, then the Company may suspend or terminate that part of its data, software or services immediately without notice or further obligation to Client. The Company will use its best efforts to work to replace any eliminated data, software or services with no obligation to be successful.
10.3 Except where Client has entered into a relevant written agreement directly with a third-party provider, it has no contract with any third-party provider in respect of the supply or use of any third-party data, software or services. Third-party providers do not owe Client any duty of care with respect to data, software or services nor do they accept any responsibility for them. If an implied contract or duty should be held to exist, Company, as agent for each third-party licensor and solely for the purpose of the following exclusion, disclaims all liability for itself or each third-party licensor for any of Client’s losses which may arise under that implied contract or duty.
10.4 Third-party providers do not warrant that the provision of their data, software or services will be uninterrupted, error-free, timely, complete or accurate, nor do any of them make any warranties as to the results to be obtained from the use of the same. The client acknowledges that third-party data, software or services do not constitute a recommendation of any kind and are provided for informational purposes only. The client expressly agrees that Client’s use of third-party data, software or services is at its own risk. Accordingly, neither the Company, nor the third-party providers will in any way be liable to Client or any other entity for any inaccuracies, errors, omissions, delays, damages, claims, liabilities or losses, regardless of cause, in or arising from the use of the third-party data contained in Company products and/or services.
11. Miscellaneous Provisions
11.1. Excusable Delay (Force Majeure): Neither party will be liable for failure to perform its obligations hereunder due to any unforeseeable event beyond the control of, and not caused by the fault or negligence of, the party or its agents (unless the event would have been prevented by the affected party’s compliance with these TOS), including but not limited to acts of God, fire, flood, explosion, war, riot, declaration of martial law or emergency by governmental authority, terrorism, third-party strikes or other work stoppages by third parties, or similar cataclysmic occurrences; provided, however, that the party rendered unable to perform will use diligence to resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.
11.3. Governing Law: The laws of the Commonwealth of Massachusetts govern any action arising out of these TOS without regard to its principles of conflicts of law.
11.4. Notice: All notices, including notices of address change will be in writing and sent via delivery service providing proof of delivery (such as FedEx or UPS) or by certified mail, return receipt requested, to the addresses set forth in the applicable Order (and if to Company, addressed to the attention of the President). The notices will be deemed to have been given upon the date received. Either party may change its address for receiving notice by giving the other party prior written notice.
11.5. Relationship between the Parties: Company is an independent contractor of Client, free from Client’s direction and control, and not an agent or employee of Client. Company has no authority to act on behalf of Client or in its name to incur any obligations or expenses on behalf of Client, or to bind Client, either directly or indirectly, in any manner.
11.6. Severability and Waiver: In the event any provision of these TOS is held to be invalid or unenforceable, the remaining provisions of these TOS will remain in full force and effect. No failure to act on account of any default will constitute a waiver of any such default or of the performance required.
11.7. Assignment: Each Order and these TOS will inure to the parties’ permitted successors and assigns, which will be bound thereby. No Order or these TOS may be assigned by either party without the other party’s prior written consent, except that the Order and these TOS may be assigned to any successor to all or substantially all of a party’s businesses, whether by merger, change of control, asset sale or similar transaction. Any assignment in breach of the foregoing shall be void.
11.8. Survival: The rights and obligations of Company and Client contained in §3 (Fees and Payment), §5 (Confidentiality and Proprietary Rights), §6.2 (Warranty Disclaimers), §7 (Mutual Indemnification), §8 (Limitation of Liability), §9 (Data) and §10 (Miscellaneous) will survive any termination or expiration of the subscription. No action or claim relating to these TOS may be instituted more than one year after the event that gave rise to such action or claim.
11.9. Privacy & Publication: Company’s Privacy and Security Policies may be viewed on the Software at the bottom of each displayed page and are incorporated herein by reference. Company reserves the right to modify its privacy and security policies in its reasonable discretion from time to time.
11.10. No Debarment: Company represents and warrants that it has not been debarred or excluded by any federal or state agency possessing authority to debar or exclude potential government contractors.
11.11. Non-Solicitation: Without the prior written consent of Company, the granting or denial of which shall be at the sole discretion of the Company, Client shall not, directly or indirectly, recruit, solicit for employment, retain as an independent contractor, hire, or employ, on a temporary or regular basis, any personnel of the Company who are or have been assigned to perform work for Client under the Agreement during the term of this Agreement and for two (2) years after the effective date of the termination of the Agreement.
LAST MODIFIED 12/20/2019
1 Building Engines, Inc. includes the wholly-owned subsidiaries Real Data Management (RDM); its product “Real Access” and related services as well as Database International Group and its product “Aware Manager”, and related services.