BuildCentral, Inc. Standard Terms and Conditions
1. Agreement. "Agreement" shall mean any contract Rider executed by "Customer" and accepted by BuildCentral ("BuildCentral"), and these standard terms and conditions which are incorporated by reference in such rider. Services ("Services") shall include the online and published products of BuildCentral, Inc., as well as any other marketing or information services performed for clients.
2. Customer Warranties. Customer represents and warrants to BuildCentral that there exists, at the commencement of this Agreement and for all periods hereunder: no legal reason that BuildCentral should deny Services to Customer; that Customer is of legal majority age (i.e., 18 years of age or older in most jurisdictions); and that Customer's use of Services is not for any illegal or injurious purpose or purposes. Customer represents and warrants to BuildCentral that Customer will not use the Services to publish, post, distribute, receive or disseminate defamatory, infringing, obscene, or other unlawful material or to threaten, harass, stalk, abuse, or otherwise violate the legal rights (including without limitation rights of privacy and publicity) of others. Customer represents and warrants that Customer will not intercept or attempt to intercept the communications of others using the Services or to delete materials of BuildCentral or of others using the Services or to corrupt or interfere with the Services in any respect or to falsify the origin of Customer's communications. Further, Customer represents and warrants to BuildCentral Customer's strict compliance with copyright laws applicable to the information obtained via the Services.
3. Indemnity. Customer agrees to indemnify and hold BuildCentral, its officers, employees and its suppliers harmless from and against any loss, claim, demand, expense (including attorney's fees), or liability of whatever nature or kind of Customer or of third parties arising out of the use of Service or materials provided hereunder; provided however, that such obligations shall not apply where the loss, claim, demand, expense, or liability arises from BuildCentral's infringement of the intellectual rights of third parties. BuildCentral agrees to indemnify and hold Customer, its officers, and employees harmless from and against any loss, claim, demand, expense (including attorney's fees) or liability arising out of BuildCentral's infringement of the intellectual property rights of third parties.
4. Data and Service. THE DATA AND SERVICES FURNISHED HEREUNDER ARE FURNISHED "AS IS." BUILDCENTRAL AND ITS INFORMATION PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, NOR ARE ANY SUCH WARRANTIES TO BE IMPLIED WITH RESPECT TO THE DATA OR SERVICES FURNISHED. BUILDCENTRAL AND ITS INFORMATION PROVIDERS ASSUME NO RESPONSIBILITY WITH RESPECT TO CUSTOMER OR ITS EMPLOYEES, CLIENTS, OR CUSTOMERS USE THEREOF. BUILDCENTRAL AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, NOR SHALL THEY BE LIABLE FOR EXEMPLARY DAMAGES OR "LOST PROFITS." IN NO EVENT SHALL BUILDCENTRAL OR ITS SUPPLIERS LIABILITY TO CUSTOMER FOR DAMAGES, REGARDLESS OF CAUSE OR FORM OF ACTION, EXCEED THE VALUE OF THE ORDER FOR ONE (1) YEAR PRECEDING THE INCIDENT GIVING RISE TO SUCH DAMAGES. SUCH LIMITATION, HOWEVER, SHALL NOT BE APPLICABLE TO CLAIMS INVOLVING INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
5. License and Use. Customer may not use any data or documentation received from the Service except as expressly provided in this Agreement. Customer agrees, for itself and for any party acting by or through Customer: (i) To allow its password(s) and any documentation, or data received from the Service, to be used only by Customer's authorized users (ii) Not to transfer, by any means whatsoever, any data or documentation received from the Service (or copies thereof), to any person, organization or institution outside the Approved User-Base and to prohibit any member of the Approved User-Base from doing so; (iii) Not to sell, exchange, barter, or transfer, rent, lease, loan, resell for profit, distribute or in any other manner commercially exploit any data or documentation received from the Service; or obscure copyright notices contained on data or documentation received from the Service. Exceptions to these conditions, where requested in writing by Customer, may be granted by BuildCentral's sole discretion.
6. Invoicing/Payment. Customer will be invoiced prices set forth in the applicable BuildCentral Rider(s). BuildCentral's prices are exclusive of sales, use, excise, value added, or other similar taxes; Customer will be invoiced for any applicable taxes on the sale of services and/or products. Invoicing will be as set forth in the Rider with payment due upon receipt of invoice. Undisputed accounts not paid within thirty (30) days of date of invoice shall be deemed delinquent and are subject to interest charges of eighteen percent (18%) per annum on the unpaid balance (or the maximum rate allowed by law, if such rate is less than 18%). BuildCentral reserves the right to suspend Service to a delinquent account without prior notice. Should Customer be delinquent in the payment of any invoices, Customer shall be liable for all costs of collection incurred by BuildCentral, including without limitation collection agency fees and reasonable attorney's fees, as well as court costs.
7. Use of Purchase Order. In case of any conflict with the terms of this agreement and the customer's purchase order, terms of this agreement shall control and prevail.
8. Termination of Agreement. This Agreement remains in effect until terminated by either party. Customer will provide 30 days written notice before the end of a month to BuildCentral in accordance with the terms set forth in the Rider(s) in order to terminate this agreement.
9. Law. This Agreement shall be construed and interpreted solely in accordance with the laws of the State of Illinois, United States of America, without application of its conflict of laws provisions. Should any term and condition be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions. BuildCentral's remedies set forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which shall be deemed as waived by virtue of BuildCentral's exercise of any other remedy.
10. Force Majeure. BuildCentral and its information providers shall not be liable or deemed to be in default for any delays or failure in performance or interruption of Service resulting directly or indirectly from any cause or circumstance beyond their reasonable control.
11. Assignment. This Agreement is not assignable or transferable by Customer and any attempted assignment or transfer shall be null and void and of no force or effect. BuildCentral may assign this Agreement and/or payments due without requirement for Customer's permission or approval.
12. Final Agreement. This Agreement (including any revisions) constitutes the entire agreement between the parties. This Agreement may only be modified in writing by BuildCentral.Revised May 06