- Licensed Program. Subject to the terms of this Agreement, BuildingFit grants Customer a limited, nonexclusive, and nontransferable license to access and execute the Licensed Program on the hosted configuration supported by BuildingFit (or, if hosting on a local server is selected, to install, access, and execute the Licensed Program on a server or servers that meet BuildingFit deployment requirements), but only in accordance with (i) the technical specifications in the Documentation and (ii) the Software subscription term length and any user, workgroup, or project limits set forth in an Order Form, if applicable, documenting the duration and extent of Customer’s license. This license shall terminate upon the expiration or earlier termination of this Agreement. All rights not specifically granted to Customer under this Agreement are retained by BuildingFit and its licensors.
- Certain Restrictions. Except as otherwise specifically permitted under Section 2.1, Customer shall not use, copy, modify, create derivative works of, distribute, sell, assign, sublicense, loan, or transfer to a third-party the Licensed Program, nor permit any third-party to do any of the foregoing; provided that Customer may assign this Agreement to an acquirer of the Product as long as such acquirer agrees in writing to be bound by this Agreement and Customer destroys all copies of the Licensed Program in its possession (if any) upon such assignment. Additionally, Customer shall not (i) derive or attempt to derive the source code of all or any portion of the Licensed Program that is provided to Customer in object code form, (ii) permit any third-party to derive or attempt to derive such source code, (iii) reverse engineer, decompile, disassemble, or translate the Licensed Program or any part thereof, or otherwise attempt to derive or gain access to the source code of the Licensed Program or any part thereof, or (iv) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Licensed Program.
- Certain Third-Party Software. Certain software components provided by BuildingFit in connection with the Licensed Program contain software programs that are licensed to BuildingFit by third parties pursuant to open-source or other third-party licenses (“Third-Party Software Programs”). The licenses that govern Customer’s use and distribution of the Third-Party Software Programs can be found here: BuildingFit.com/resources/product_documentation. The source code to the portions of Third-Party Software Programs that are subject to third-party licenses that require BuildingFit to provide such source code to licensees (e.g., the GNU General Public License, the Common Public License, the Mozilla Public License) may be obtained by contacting: legal@BuildingFit.com. Customer acknowledges and agrees that BuildingFit is not responsible for Third-Party Software Programs, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, quality, or any other aspect thereof.
- Collection and Use of Information. Customer acknowledges that when Customer downloads, installs, or otherwise uses the Licensed Program, BuildingFit may collect data and information (whether by automatic means or otherwise, including, for example, cookies and web beacons) related to Customer’s use of the Licensed Program that is used by BuildingFit in an aggregate and anonymized manner, including to compile statistical performance information (“Resultant Data”). BuildingFit may disclose such Resultant Data to its subsidiaries, affiliates, service providers, and other third parties BuildingFit uses to support its business.
Ownership and Feedback.
BuildingFit and its licensors own and shall retain all intellectual property rights and other rights in and to the Licensed Program, the Documentation, Resultant Data, and any other commercial release that BuildingFit creates, and any changes, modifications or corrections to the foregoing. Customer may report or otherwise disclose orally or in writing errors, problems, defects, or suggestions for changes and improvements to the Product (collectively, “Feedback”) to BuildingFit. Customer hereby grants to BuildingFit a royalty-free, perpetual, irrevocable, sublicenseable, transferable license to exercise all intellectual property rights in the Feedback and otherwise exploit the Feedback for any purpose.
- BuildingFit agrees to use diligent efforts to render the services described on the attached Statement(s) of Work (“Services”) by the delivery dates specified, if any. Any work product or other materials that are delivered to Customer as part of the Services, or that are specifically prepared by or on behalf of BuildingFit for Customer in the course of providing the Services, shall be deemed “Deliverables”. The parties may execute additional Statements of Work describing Services, which will become part of this Agreement upon execution. Customer agrees to assist BuildingFit, as BuildingFit reasonably requests, in order to perform the Services. To the extent that Customer does not timely provide resources, personnel, or materials required for BuildingFit to perform the Services or deliver the Deliverables, BuildingFit shall be excused until such items are provided.
Changes to Scope of Services.
If Customer desires to change a Statement of Work, Customer will submit a written request to BuildingFit detailing the proposed changes. BuildingFit will notify Customer of resource availability, resulting cost, and schedule changes and whether BuildingFit has the resources available to make such changes. If BuildingFit has adequate resources to make the change it will so advise Customer, and the amendments will be made in writing to reflect the changes. If Customer and BuildingFit are not able to agree to an adjustment to the Statement of Work, it will remain unchanged.
Customer will pay BuildingFit the amounts and at the times set forth on the applicable Statement of Work. If not specified, Customer will pay BuildingFit its customary rates for Services annuaally. All payments are due 30 days from receipt of invoice in U.S. Dollars, or other quoted currency. Customer will be responsible for all taxes except U.S. taxes based on BuildingFit’s net income. Customer agrees to reimburse BuildingFit for pre-approved travel, lodging and meal expenses incurred in the course of performing the Services at any location other than BuildingFit’s site. BuildingFit will invoice Customer for expenses incurred and at Customer’s request and expense, BuildingFit will provide copies of receipts for which charges are incurred. If Customer in good faith disputes one or more items in an invoice, it must notify BuildingFit promptly (and in any event before the due date thereof) in writing of the item or items under dispute and the reasons therefor. Customer may withhold payment of the disputed portion of the invoice until the dispute is resolved; however, any undisputed portion shall be paid within the time period specified. BuildingFit may, upon not less than ten (10) days prior written notice to Customer, withhold Services if Customer fails to pay timely any amount invoiced by BuildingFit that is not timely disputed in good faith by Customer.
Term and Termination.
This Agreement shall be effective until terminated in accordance with this Section 4. Either party may terminate this Agreement upon written notice to other party in the event: (a) such party materially breaches any provision hereof and fails to cure such breach within ten (10) days after receipt of notice of such breach; or (b) such party becomes insolvent, files or has filed against it a petition in bankruptcy (or any similar petition under any insolvency law of any jurisdiction), proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, or if a receiver, trustee, custodian or similar agent is appointed or takes possession of any property or business of such party. Upon termination of this Agreement for any reason, Customer agrees to either: (y) return to BuildingFit all copies of the Licensed Program in Customer’s possession or under Customer’s control or (z) destroy all such copies and certify such destruction to BuildingFit in writing. All licenses and other rights to use the Product shall terminate upon any termination of this Agreement. The termination of this Agreement shall not affect Customer’s obligation to pay for the Product or any related service, nor shall termination limit any of BuildingFit’s rights or remedies at law or in equity. The following provisions will survive the expiration or earlier termination of this Agreement: Sections 2.3, 2.4, 3, 7, 9, 10, 11 and 14.
License and Ownership.
- Customer Materials. Customer hereby grants BuildingFit a limited right and license to use any Customer materials provided to BuildingFit in connection with the Services (the “Customer Materials”) solely for the purpose of performing the Services for Customer. Customer owns and will retain ownership (including all intellectual property rights) in the Customer Materials and any improvements or modifications thereto made by BuildingFit.
- Other Agreements. For the avoidance of doubt, BuildingFit and Customer may enter, or may have entered, into a separate agreement under which BuildingFit licenses certain software, including updates and enhancements to that software, to Customer (“Software”). The delivery and use of any such Software is governed by the terms of such other agreement and not the terms of this Agreement. BuildingFit hereby grants Customer a non-transferable, royalty-free license to use the Deliverables, but BuildingFit owns and will retain ownership (including all Intellectual Property Rights (as defined below)) in the Deliverables (excluding any Customer Materials, modifications or improvements to Customer Materials made by BuildingFit). All copies, improvements, updates, modifications or enhancements of the Software or any Deliverables (including any modifications to sample files) shall remain the property of BuildingFit (including any changes which incorporate any ideas, feedback or suggestions of Customer). For purposes of this Agreement, “Intellectual Property Rights” shall mean all intellectual property rights, including copyrights, patents, patent disclosures, and inventions, trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all goodwill associated therewith.
BuildingFit will perform the Services and deliver the Deliverables in a good and workmanlike manner consistent with industry standards. BuildingFit will, as its sole liability for failure to provide Services or Deliverables meeting this warranty, re-perform the non-conforming Services or re-deliver the non-conforming Deliverables at no additional cost to Customer if notified of the non-conformity within 30 days of delivery of the applicable Service or Deliverable. Notwithstanding the foregoing, BuildingFit shall not be liable for the costs of rectifying any failure, defect, or other deficiency in the Services and/or Deliverables to the extent that BuildingFit can demonstrate that the same is as a result of (a) failure by the Customer to strictly observe the relevant instructions for the operation of the same as set out in any operating manual for the same; (b) abnormal operating conditions other than those specified to BuildingFit; or (c) latent defects in goods or the worksite provided by Customer that BuildingFit could not have been reasonably expected to identify. EXCEPT FOR THE FOREGOING WARRANTY, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND BUILDINGFIT EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
Limitation of Liability.
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BUILDINGFIT’S LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID BY CUSTOMER TO BUILDINGFIT IN THE LAST TWELVE MONTHS UNDER THE APPLICABLE STATEMENT OF WORK. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Each party agrees that all Product code (excluding the object-code version of the Licensed Program and any Third-Party Software Programs licensed under open-source agreements that require disclosure of the software licensed under such agreements), inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by BuildingFit (or its agents) shall be deemed Confidential Information of BuildingFit without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
BuildingFit shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of BuildingFit including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
. During the term of this Agreement and for a period of two (2) years thereafter, Customer shall not, directly or indirectly: (a) solicit or attempt to solicit the employment of any employee of BuildingFit or any of its affiliates (each, a “Restricted Employee”) or otherwise encourage, induce, solicit, or attempt to encourage, induce or solicit any Restricted Employee to leave the employment of BuildingFit or any of its affiliates (provided, however, that general public solicitations of employment (e.g., via advertisements or website postings) that are not directly or indirectly targeted at Restricted Employees shall not be deemed a violation of the foregoing; (b) hire, employ or engage any Restricted Employee; or (c) solicit or attempt to solicit any customers, service providers, consultants, or contractors of BuildingFit to cease doing business with or reduce or change their relationship with BuildingFit. If any of the restrictive covenants as set forth in this Section 10 are deemed by a court or arbitrator to be invalid or unenforceable, the parties shall reduce the scope thereof or amend the portion adjudicated to be invalid or unenforceable. Customer agrees that BuildingFit would suffer irreparable harm as a result of the violation of the restrictive covenants herein, and in addition to the other remedies that may be available to BuildingFit hereunder or at law, BuildingFit shall be entitled to seek an injunction temporarily enjoining the Customer from breaching or threatening or attempting any such breach of such covenants and agreements.
- This Agreement will be governed by and construed in accordance with the laws of the State of Utah. The parties exclude the application of the 1980 United Nations Convention on the International Sale of Goods and the application of the Uniform Computer Information Transactions Act. The parties consent to the personal jurisdiction and venue of the federal and state courts sitting in the County of Salt Lake, in the State of Utah. Except as specified in Section 2.2, neither this Agreement nor any rights or obligations under this Agreement may be assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of BuildingFit. Any attempted or purported assignment or delegation by Customer in violation of the previous sentence will be null and void. The Customer will not export, directly or indirectly, the Product or any technical data of BuildingFit to any country for which the U.S. Government requires an export license or other governmental approval without first obtaining such license or approval. If any provision of this Agreement will be held invalid or unenforceable by a court, the remaining provisions of this Agreement will remain in full force and effect, and the provision or portion thereof affected will be construed so as to be enforceable to the maximum extent permissible by law. All waivers of rights or obligations under this Agreement must be in writing. This Agreement may only be amended by a written document signed by both parties. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between them. Customer will permit BuildingFit or its representatives to review Customer’s relevant records and inspect Customer’s facilities solely to ensure compliance with this Agreement. BuildingFit will give Customer reasonable advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations. If Customer is a branch or agency of the United States Government or obtaining the Licensed Program pursuant to a United States Government contract, then the following provision applies. The Licensed Program is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. Miscellaneous. Each party is an independent contractor of the other and neither is an employee, agent, partner or joint venture of the other. Neither party will make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. This Agreement is not assignable or transferable by Customer without the prior written consent of BuildingFit and any attempt to do so will be void. Any notice, report, approval or consent required or permitted under this Agreement will be in writing to the address specified above. Any waiver by either party of any breach of this Agreement, whether express or implied, will not constitute a waiver of any other or subsequent breach. No provision of the Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties authorized to bind the parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.