Master Service Agreement

Last updated: January 6, 2026

This Master Service Agreement (this “Agreement”) sets forth the terms and conditions under which Buildr, LLC, a Delaware limited liability company, with offices located at 2418 E Millbank Dr, CA 92867 (“Provider”) will provide access to the SaaS Service and related services to the individual, company, or legal entity identified on the Order Form (hereinafter, “Customer”). Capitalized terms used above and not defined have the meanings given to them in Section 1 below. The “Effective Date” of this Agreement shall be the date that this Agreement is first accepted by or on behalf of the Customer as set forth below. Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

Read the terms and conditions of this Agreement carefully before purchasing or using any services from Provider or entering into any Order Form. This Agreement is a legal and enforceable contract between Customer and Provider. BY AGREEING TO AN ORDER FORM INCORPORATING THIS AGREEMENT, CLICKING “I ACCEPT”, OR ACCESSING AND/OR USING THE SAAS SERVICE OR ANY PART THEREOF, YOU HEREBY: (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS, AND (2) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER AND TO BIND CUSTOMER TO THE TERMS OF THIS AGREEMENT.

IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT OR DO NOT HAVE SUCH AUTHORITY, DO NOT ACCEPT THIS AGREEMENT OR ACCESS OR USE THE SAAS SERVICE (OR ANY PART THEREOF)

1. Definitions.

  • (a) “Account” means the account provisioned by Provider to Customer for access to the SaaS Service.
  • (b) “Admin User” means any individual employee of Customer: (i) who is authorized by Customer to use the SaaS Service, (ii) to whom Customer (or Provider at Customer’s or another Admin User’s request) has supplied access credentials, and (iii) who has permissions to administer the Account within the SaaS Service, in addition to using all other features of the SaaS Service included in the Subscription, subject to any applicable Usage Parameters.
  • (c) “Aggregated Statistics” means data and information related to Customer’s and its Users’ access and use of the SaaS Service that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS Service and/or Technology.
  • (d) “Applications” means Provider’s proprietary mobile software applications, including any Enhancements and Maintenance Modifications thereto, that are made available by Provider to Customer for installation on Authorized Devices to access the SaaS Service pursuant to this Agreement and the applicable Order Form(s).
  • (e) “AUP” means Provider’s then-current acceptable use policy available at https://buildr.com/legal/acceptable-use.
  • (f) “Authorized Devices” means the computer devices owned or controlled by Customer on which the Applications are authorized to be installed.
  • (g) “Authorized User” means any Admin User or Registered User.
  • (h) “Beta Services” has the meaning given to such term in Section 3(d).
  • (i) “Collaborator” means any individual (other than an Admin User or Registered User) who: (i) is invited by Customer or an Admin User, through the invite link generated by the SaaS Service, and (ii) may use the SaaS Service solely for the limited purposes of collaborating on a Customer Project, subject to and within the scope of the collaborator permissions and any other Usage Parameters applicable to such collaborator users.
  • (j) “Construction Volume” means the aggregate dollar value of the construction work performed, planned, or put in place by Customer for all Customer Projects during a given time period.
  • (k) “Customer Data” means, other than Aggregated Statistics and Performance Data, information, data, and other content, in any form or medium, that is uploaded, submitted or posted to the SaaS Service, or otherwise transmitted by or on behalf of Customer or any User through the access and/or use of the SaaS Service by or on behalf of Customer and/or its Users.
  • (l) “Customer Project” means each distinct construction project constrained by a specific scope, budget, and schedule, as specified in a construction project agreement, that is in the construction phase. The Customer Project lifecycle phases for typical construction projects may include initiation, planning, design, demolition, construction, commissioning, closeout, and warranty. The “construction phase” is considered to commence with the bid and award process, and is considered to be complete upon warranty term expiration. Customer may use the SaaS Service with an unlimited number of simultaneous Customer Projects unless otherwise set forth in the Order Form.
  • (m) “Documentation” means Provider’s user manuals, handbooks, and guides relating to the SaaS Service provided by Provider to Customer either electronically or in hard copy form.
  • (n) “Enhancements” means minor modifications and revisions to the SaaS Service (or any component thereof), including the addition of enhancements or improved performance made generally available by Provider to its customers without additional fees, in the sole discretion of Provider; however, Enhancements do not include the addition of New Features not originally included as part of the SaaS Service described on the Order Form.
  • (o) “Maintenance Modifications” means bug fixes, patches, modifications, or revisions to the SaaS Service (or any component thereof) that correct errors therein; however, Maintenance Modifications do not include New Features not originally included as part of the SaaS Service described in the Order Form.
  • (p) “New Features” means any significant technological or performance improvements to, or additional or enhanced features of, the SaaS Service (or any component thereof) that, subject to Provider’s sole discretion, are offered to Customer for an additional fee, and are distinct from Enhancements and Maintenance Modifications that Provider makes available to Customer under this Agreement.
  • (q) “Order Form” means a written and/or electronic order form referencing and incorporated into this Agreement that is mutually agreed upon and executed by the Customer and Provider specifying, as applicable: (a) the SaaS Service and Subscription purchased by Customer, (b) any Implementation Services purchased by Customer and/or otherwise to be performed by Provider under this Agreement, and (c) the applicable fees due and payable by Customer for the use of the SaaS Service and/or Professional Services under the applicable Order Form.
  • (r) “Performance Data” means Provider’s technical logs, metadata, and usage and diagnostic information, metrics and analytics regarding the performance, provision, and operation of the SaaS Service and Technology and the use of the SaaS Service by Customer and Users.
  • (s) “Platform” means Provider’s proprietary software-as-a-service platforms, specified in the applicable Order Form, that are hosted and made available by Provider on an online remote basis, including any Enhancements and Maintenance Modifications thereto, that Provider makes available to Customer pursuant to this Agreement and the applicable Order Form(s).
  • (t) “Provider IP” means the Technology, Performance Data, Aggregated Statistics, any other information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the SaaS Service, and/or Beta Services (or any part thereof), and any and all intellectual property rights embodied in or covering any of the items set forth in forth in (i) – (iii). For the avoidance of doubt, Provider IP does not include Customer Data.
  • (u) “Registered User” means, other than an Admin User or Collaborator, any individual employee or contractor of Customer, or, where expressly permitted in the applicable Order Form, Customer’s client, or an employee or contractor of such client, in each case: (i) who is authorized by Customer or an Admin User to use the SaaS Service, (ii) to whom Customer or an Admin User (or Provider at Customer’s or an Admin User’s request) have supplied access credentials, and (iii) who has permissions to use features of the SaaS Service included in the Subscription beyond the permissions provided to a Collaborator, and subject to any applicable Usage Parameters.
  • (v) “SaaS Service” means Provider’s provision of, and Customer’s access to and use of, the Platform and Applications, on a subscription license basis, pursuant to the Subscription purchased by Customer as specified in the applicable Order Form.
  • (w) “Subscription” means the subscription license purchased by Customer hereunder, as further specified on the applicable Order Form, to access the SaaS Service and to receive Support during the applicable Subscription Term.
  • (x) “Subscription Term” means the Subscription period specified on the applicable Order Form and any renewal thereof as set forth in Section 13(b).
  • (y) “Technology” means the (i) Platform, Applications, Documentation, and Beta Services, (ii) any and all analytic, machine learning, artificial intelligence and/or other models and/or algorithms, software programs, components, applications, and tools underlying the Platform, Applications and/or Beta Services, or otherwise used to provide, operate, maintain, host and/or provide the Platform, Applications and/or Beta Services, and (iii) any and all modified, updated, or enhanced versions to, or derivative works of, any of the foregoing.
  • (z) “Third-Party Products” has the meaning given to such term in Section 3(c).
  • (aa) “Usage Parameters” means the applicable limits on Construction Volume, Customer Projects, number of permitted users and/or seats, and any other parameters applicable to the Subscription purchased by Customer specified in the applicable Order Form(s).
  • (bb) “Users” means, collectively, Admin Users, Registered Users, and Collaborators.

2. Access and Use.

  • (a) Rights and Licenses. Subject to and conditioned on Customer’s payment of the Fees (as defined below) and compliance with all other terms and conditions of this Agreement (including, without limitation, the AUP), Provider hereby grants Customer, during the Subscription Term a non-exclusive, non-transferable (except in compliance with Section 15(h)), non-sublicensable, limited license, on a subscription basis to: (i) permit Authorized Users to (A) access and use the Platform, over the internet, and solely in object code, and (B) download, install, execute, and use, in object code form only, the Applications on Authorized Devices; (ii) permit Collaborators to access the Platform, over the internet and through the Collaborator Link, solely for the limited purposes of collaborating on a Customer Project; and (iii) use reproduce and use a reasonable number of copies of the applicable Documentation in support of the Customer’s use of the SaaS Service in the exercise of the licenses and rights granted in this Section 2(a). The licenses granted to Customer under this Section 2(a) are limited to the use of the SaaS Service by Customers and its Users solely (1) for Customer’s internal business purposes; (2) within and in accordance with all applicable Usage Parameters; and (3) in accordance with the applicable Documentation and the terms of this Agreement (including, without limitation, the AUP).
  • (b) Service Updates. Provider may, at any time, change, modify, upgrade, or discontinue any aspect or feature of the SaaS Service (or Technology), or any other services provided hereunder, in whole or in part. Such changes, upgrades, modifications, additions, or deletions will be effective immediately. During the Subscription Term, subject to Customer’s payment of applicable fees, Provider shall provide Customer with Enhancements and Maintenance Modifications that are generally made available to Provider’s customer base at no additional charge. Provider may, from time to time, develop New Features, which may be offered to Customer for additional fees.
  • (c) Use Restrictions. Customer shall not, and shall not permit any third party (including, without limitation, any Users) to: (i) use the SaaS Service and/or any Technology (or any part thereof) or allow access to it, in a manner that circumvents contractual usage restrictions or that exceeds any applicable Usage Parameters; (ii) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the SaaS Service and/or Technology available for access by third Parties except as otherwise expressly provided in this Agreement, or share passwords, access credentials, or access to User Accounts (as defined in Section 3(a) below); (iii) access or use the SaaS Service and/or Technology (or any part thereof) for purposes of building a competitive product, or otherwise engage in competitive benchmarking; (iv) disclose the results of any internal non-competitive and non-commercial benchmark test of the SaaS Service and/or Technology to any third party without Provider’s prior written approval; (v) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive, reconstruct or discover source code, data, or other trade secrets, or any underlying ideas, models, algorithms and/or technology from or about the SaaS Service and/or Technology (or any part thereof); (vi) use the SaaS Service and/or Technology (or any part thereof) to develop, train improve any artificial intelligence, large language model or any other machine learning model (separate from authorized use of the SaaS Service under this Agreement); (vii) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Provider or its suppliers on or within the SaaS Service, Technology, and/or Documentation; (viii) interfere with or disrupt the integrity or performance of the SaaS Service and/or any Technology (or any part thereof), or any system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the SaaS Service and/or Technology (or any part thereof); (ix) attempt to gain unauthorized access to the SaaS Service and/or Technology (or any part thereof), or its related systems or networks; (x) attempt to probe, scan or test vulnerability of the SaaS Service and/or Technology (or any part thereof) without Provider’s prior written authorization; (xi) use the SaaS Service to store, upload, or transmit any (A) materials containing malicious or unsolicited code or software, or (B) materials or content that violates or misappropriates any third party’s intellectual property, publicity, confidentiality, proprietary, and/or privacy rights; or (xii) use the SaaS Service and/or Technology (or any part thereof), or transmit or process Customer Data, in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency, including, without limitation, export laws and regulations.
  • (d) AI Features. The SaaS Service may utilize and/or integrate certain generative artificial intelligence (AI), large language models (LLMs), and other machine learning (ML) functionality (“AI Features”). Customer acknowledges, understands and agrees that: (i) artificial intelligence and machine learning are rapidly evolving fields of study, (ii) given the probabilistic nature of machine learning, use of the AI Features may in some situations result in incorrect output that does not accurately reflect real people, places, or facts, or conform to Customer’s or any of its User’s specifications, prompts or requirements, and (iii) Customer is responsible for evaluating the accuracy of any output generated through the AI Features (“AI Output”) by or on behalf of Customer’s and/or its Users, as appropriate for Customer’s use case, including by using manual human review of the AI Output. Without limitation to Section 2(c) above, Customer agrees that it will not, and it will not permit any User or other person to: (A) represent any AI Output as being approved or vetted by Provider or its affiliates, personnel, suppliers, service providers, agents, or representatives; or (B) represent any AI Output as being an original work or a wholly human-generated work. Certain AI Features may be developed and owned by third Parties and subject to additional terms, conditions or policies (collectively, “AI Policies”). Customer agrees to and shall ensure its Users use all third party AI Features in accordance with the authorized use of the SaaS Service as set forth in this Agreement and any applicable AI Policies. Provider’s current list of third party AI Features and any applicable AI Policies are available upon request.
  • (e) Open Source Components. Certain items of software that may be provided as part of the SaaS Service may be subject to “open source” or “free software” licenses (“Open Source Software”). Open Source Software may be owned by Provider or by third Parties. Each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software, which shall be provided to Customer upon request. Customer agrees to comply with the terms and conditions of the Open-Source Licenses.
  • (f) Additional Terms for the Applications.
    • (i) Authorized Devices. Customer acknowledges and agrees that: (A) the Applications may only be installed, executed, and used (in accordance with the license grant set forth in Section 2(a) above) on the Authorized Devices; and (B) in order to use the Applications, Customer and its Authorized Users must have a compatible Authorized Device. Customer further acknowledges and agrees that Customer and its Authorized Users are solely responsible for any fees or charges incurred from use of the Applications by Customer and/or its Authorized Users through Authorized Devices, including, without limitation, any mobile phone provider charges for SMS, text, or data usage or services.
    • (ii) App Updates. Provider may from time to time in its sole discretion develop and provide updates to the Applications, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related Documentation, “Application Updates”). Application Updates may also modify or delete in their entirety certain features and functionality. Customer agrees that Provider has no obligation to provide any Application Updates or to continue to provide or enable any particular features or functionality. Based on Customer’s and its Authorized Users’ mobile and/or table device settings, Customer acknowledges and agrees that when connected to the internet: (A) the Application will automatically download and install all available Application Updates; and/or (B) Customer and its Authorized Users may receive notice of or be prompted to download and install available Application Updates.
    • (iii) App Store Distributors. Customer acknowledges and agrees that certain app distributors such as Apple, Inc. (“Apple”) and Google, Inc. (“Google”) of the Applications (“App Distributors”) through the app stores provided by such App Distributors (“App Stores”) are intended third party beneficiaries of this Agreement and have the right to enforce this Agreement directly against Customer with respect to the use of the Applications downloaded by Customer and its Authorized Users through the App Store. Customer acknowledges that this Agreement is between Customer and Provider only, and not with any App Distributor. Customer’s and its Authorized Users’ use of the Applications must comply with the then-current terms and conditions of the App Store through which the Applications are downloaded. Customer acknowledges and agrees that Provider, and not the App Distributor: (A) is solely responsible for the Applications and Provider’s related content available thereon; (B) is responsible for addressing any claims by Customer relating to the Applications, including, but not limited to: (1) product liability claims; (2) any claim that the Applications fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to Provider as provider of the Applications; and (C) shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement, and discharge of any third-party intellectual property infringement claim related to the Applications. Customer acknowledges that the App Distributor has no obligation to provide maintenance and support services with respect to the Applications. To the maximum extent permitted by applicable law, the App Distributor will have no warranty obligation whatsoever with respect to the Applications. Customer represents and warrants that Customer and its Authorized Users are not: (x) 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 (y) listed on any U.S. Government list of prohibited or restricted Parties. Customer agrees to comply, and ensure its Authorized Users comply, with all applicable third-party terms of agreement when using the Applications (e.g., Customer and its Authorized Users may not be in violation of its wireless data service terms of agreement when using the Applications). The Parties agree that the App Distributor and its subsidiaries are party beneficiaries to this Agreement, and have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer, as it relates to Customer’s and its Authorized Users’ use of the Applications.
  • (g) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any User’s access to any portion or all of the SaaS Service if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the SaaS Service to Customer or any User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer or any User to access the SaaS Service; or (iii) in accordance with Section 6(b) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the SaaS Service following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the SaaS Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Service Suspension.

3. Customer Responsibilities.

  • (a) General. Customer is responsible and liable for all uses of the SaaS Service and Documentation provided by Provider under this Agreement, directly or indirectly, whether such use is permitted by, or in violation of, this Agreement or the AUP. Customer shall use reasonable efforts to make all Users aware of the terms, conditions, and provisions of this Agreement and AUP as applicable to such User’s use of the SaaS Service, and shall ensure that all Users comply with such provisions. Notwithstanding the foregoing, and without limiting the generality of Customer’s obligations and responsibilities under this Section, Customer is responsible for all acts and omissions of Users, and any act or omission by an User that would constitute a breach of this Agreement and/or the AUP if taken by Customer will be deemed a breach of this Agreement by Customer. Customer agrees that it shall (i) not permit any person other than Authorized Users to create a User Account to access and use the SaaS Service, and (ii) ensure that Users use the SaaS Service solely in accordance with this Agreement, the AUP, and any applicable Usage Parameters. For the avoidance of doubt, unless otherwise expressly permitted in the applicable Order Form and except for Collaborators, Customer may not authorize or permit any individuals other than Customer’s employees and contractors to create a User Account to access and use the SaaS Service.
  • (b) Accounts; Permissions. In order to access the SaaS Service, Customer and each Admin User and Registered User must have an active and valid registered user account (“User Account”). Authorized Users will be required to accept the AUP before accessing the SaaS Service (or any part thereof). Customer shall not permit nor authorize the sharing of any passwords or account credentials between its Authorized Users or any other third party. In registering the Account and each User Account, Customer agrees to, and shall ensure that its Authorized Users, provide and maintain account registration information, which may include, name, location, e-mail address or other contact information, and billing information, that is true, accurate, current, up to date, and complete. Customer agrees to notify Provider immediately of any unauthorized use of or access to the Account or any User Account. Customer may designate one or more Admin Users to administer and manage the Account, Subscription and access to the SaaS Service, which includes, without limitation, the right to: (i) invite and issue access credentials (or instruct Provider to issue access credentials) to Registered Users to create a User Account to access to the Saas Service, (ii) to assign certain permissions and access rights to each Authorized User (“Permissions”), including, the right to designate additional Admin Users, and (iii) copy and distribute the invite link to Collaborators to access the Platform. Customer acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may (A) subsequently invite or enable other Users to access the SaaS Services; (B) have the ability to assign Permissions to other Authorized Users; (C) have the ability to view Customer Data that is connected to the Account and User Accounts; and (D) send and receive messages within the SaaS Service to Customer, Provider or other Users. Customer acknowledges and agrees that Customer is solely responsible and liable for its Admin Users’ administration and management of the Account, including, but not limited to, the inviting and granting of access to the SaaS Service to Users, and the assignment of Permissions to Authorized Users.
  • (c) Third-Party Products. Provider may from time to time make available to Customer, or offer integrations that enable Customer the ability to connect with or use certain third-party products, applications, services and/or software through or in connection with the use of the SaaS Service, that are owned and operated by the applicable third party provider, and not Provider (collectively, “Third Party Products”). If Customer decides to access and use such Third Party Products, Customer’s use of such Third Party Products is governed solely by the terms and conditions, terms of use, terms of service, or similar end user agreements, and any other applicable policies governing the use of such Third Party Products (collectively, “Third Party Product Terms”), and Customer shall not breach or violate any applicable Third Party Product Terms with respect to such access or use. Provider does not endorse, is not responsible for, and makes no representations as to such Third Party Products, their content, or the manner in which they handle Customer’s and/or its Users’ data, including, any Customer Data that Customer or its Users transmit through the Third Party Products. Provider is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s and/or any Users’ access or use of any such Third Party Products, or Customer’s reliance on the privacy practices or other policies of such Third Party Products.
  • (d) Beta Services. From time to time, Provider may invite Customer to try certain beta services, including pilot, limited release, developer preview, non-production, or evaluation services (“Beta Services”) at no charge. Customer may accept or decline any such trial. Beta Services will be clearly designated as such by Provider. Customer expressly acknowledges and agrees that the Beta Services: (i) are for evaluation purposes and not for production use, (ii) are not considered or provided as part of the SaaS Service under this Agreement, (iii) are not supported, and (iv) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Provider may discontinue Beta Services at any time and may never make them generally available. Provider will have no liability for, and Customer hereby releases Provider from, any liability or damage arising out of or in connection with any Beta Service.

4. Data Licenses, Personal Data, and Security

  • (a) Customer Data License. Customer hereby grants to Provider (i) a non-exclusive, fully-paid up, royalty-free, worldwide license, solely during the term of this Agreement, to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the SaaS Service to Customer, and (ii) a non-exclusive, perpetual, irrevocable, fully-paid up, royalty-free, worldwide license to reproduce, distribute, prepare derivative works based on, modify, and otherwise use and display Customer Data incorporated within Performance Data and Aggregated Statistics in accordance with Sections 4(d) and 4(e) of this Agreement. Customer represents and warrants that it has all the rights necessary to grant the licenses granted herein to Provider in and to Customer Data.
  • (b) Personal Data. To the extent any Customer Data includes any personally identifiable information (“Personal Data”), which is subject to any applicable data protection laws and/or regulations (“Data Protection Laws”), Customer acknowledges and agrees that for purposes of Data Protection Laws, as between Customer and Provider, Provider is the data processor and/or service provider, and Customer is the data controller and/or business with rights to determine the purposes for which the Customer Data is processed (so long as it is not inconsistent with Provider’s services hereunder and the functionality provided through the SaaS Service). Customer represents and warrants that Customer has obtained all permissions and/or approvals from each applicable data source as may be necessary or required to transmit, host, store and/or process such Personal Data through the SaaS Service and/or otherwise provide or make available such Personal Data to Provider. Personal Data shall only be used in accordance with this Agreement and Provider’ Privacy Policy available at https://buildr.com/legal/privacy. In addition, each Party agrees to work together in good faith to mutually agree upon and execute and/or enter into any documents, agreements, statements, or policies deemed necessary or appropriate by a Party in its discretion to comply with any Data Protection Laws with respect to any Personal Data exchanged pursuant to this Agreement.
  • (c) Export. Customer is responsible for exporting Customer Data prior to the effective date of termination or expiration of this Agreement. After the effective date of termination or expiration of this Agreement, Provider will have no obligation to maintain or provide Customer Data, and will delete or destroy all copies of Customer Data in its systems or otherwise in Provider’s possession or control in accordance with Provider’s then-current data retention and deletion processes, unless legally prohibited. In addition, upon restriction, suspension or termination of the Account, and assuming there has been no material breach of this Agreement by Customer, Admin Users will be allowed, for no additional cost, to extract all Customer Data that can be exported from the SaaS Service. At Provider’s sole discretion, an area or portion of the SaaS Service may remain active, provided that, such access shall only be provided to Admin Users and limited to “read only” permissions. Customer shall accept this access as a full substitute for a complete file export of Customer’s project data in the event of any account restriction, suspension or termination.
  • (d) Performance Data. Customer acknowledges and agrees that Provider has the right to (i) collect, generate and process information, metrics, analytics, and data relating to the use and performance of the SaaS Service and which may be derived from Customer Data (collectively, “Performance Data”), and (ii) use Performance Data for Provider’s internal purposes of training, improving, developing, and enhancing the Technology, and for any other lawful purposes; including, but not limited to developing new products, features, functionality and/or services; provided that, Provider will only disclose Performance Data to third Parties, including subcontractors, for the purposes of facilitating the SaaS Service, to, improve, test, and maintain the SaaS Service, to perform its other obligations and exercise its rights under this Agreement, or as otherwise required by law.
  • (e) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s and its Users’ use of the SaaS Service and Technology and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the SaaS Service and/or Technology. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use and exploit Aggregated Statistics for any lawful business purpose, including to improve its products and services.
  • (f) Security Measures. Provider shall implement and maintain industry-standard technical and organizational security measures that are reasonably designed to prevent unauthorized access to, and disclosure of, Customer Data hosted in the SaaS Service or otherwise in Provider’s possession or control. Without limiting Provider’s obligations under this Section 4(f), Customer has and will retain sole responsibility for: (i) maintaining the confidentiality of and protecting the passwords, license keys, and/or other access credentials for the Account and all User Accounts; (ii) the security and use of Customer’s and its Authorized Users’ access credentials; (iii) implementing measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and (iv) taking any appropriate steps to securely encrypt or pseudonymize any Customer Data.
  • (g) Security Incidents. Provider shall promptly investigate any suspected breach of security with respect to Provider’s systems, and shall inform Customer without unreasonable delay (but in no event, less than 72 hours) after Provider has determined, in its reasonable discretion after reasonable investigation, that there has been a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to unencrypted Customer Data (“Security Incident”). Provider shall provide all reasonable information in Provider’s possession concerning such Security Incident insofar as it affects Customer, including the following, to the extent then known: (i) the possible cause and consequences for any data subjects whose Personal Data was involved in the Security Incident; (ii) a summary of the Customer Data affected, and the categories of Personal Data involved, if applicable; (iii) a summary of the unauthorized recipients of the Customer Data; and (iv) the measures taken by Provider to mitigate any damage. Provider shall use reasonable efforts to provide Customer updates of further developments concerning a Security Incident.

5. Service Levels and Support; Implementation Services. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the SaaS Service available in accordance with the service levels and provide the support (“Support”), each as set forth in Exhibit A. In addition, Provider may also provide Customer with certain implementation, integration, and/or other professional services as specified on the applicable Order Form (the “Implementation Services”). The fees, scope, timeline, and tasks of the Parties with respect to such Implementation Services shall be as specified in an Order Form or as otherwise mutually agreed upon by the Parties in writing.

6. Fees and Payment.

  • (a) Fees. Customer shall pay Provider the fees for the Subscription and any other services purchased by Customer hereunder set forth on the Order Form (collectively, “Fees”). Unless otherwise set forth in the applicable Order Form, and except for changes upon a renewal as set forth below, the Fees for a Subscription will not increase during the Subscription Term (provided that quantities, usage limits, and features elected by Customer remain the same). If Customer or any Admin User upgrades the Subscription, increases or exceeds the Usage Parameters, and/or subscribes to additional features or products during a Subscription Term, Customer shall pay the additional fees for such increase, pro-rated for the remainder of Customer’s then-current Subscription Term. In connection with any renewal of a Subscription, Provider reserves the right to change the Fees and usage policies and to introduce new charges for the Subscription during the renewal; provided that, Provider notifies Customer thereof (which may be provided by e-mail) at least 60 days prior to the end of the then-current Subscription Term.
  • (b) Payment Terms. Customer will pay all Fees without offset or deduction. Customer shall make all payments hereunder in U.S. dollars on or before the due date set forth on the Order Form or, in connection with any Subscription renewal, such other date as provided by Provider in writing. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) Provider may suspend Customer’s and its Users’ access to all or any portion of the SaaS Service until such amounts are paid in full. All payments hereunder shall be made in USD and, except as otherwise expressly set forth in this Agreement, are non-refundable and non-cancellable.
  • (c) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
  • (d) Auditing Rights and Required Records. Provider may audit Customer’s Construction Volume (as specified on a particular Order Form) to ensure compliance with agreed upon terms and pricing (including, applicable Usage Parameters). Provider will give Customer at least ten (10) days advance notice of any such audit and will conduct the audit during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations. Such audit will be at Provider’s expense; however, if any such audit should disclose any underpayment by Customer as compared to the rate sheet in the Order Form, Customer shall immediately pay Provider such underpaid amount, together with interest thereon at the rate specified in Section 6(a), and, if such underpayment is more than 5% of the amount that was supposed to be paid, Customer shall also pay Provider for Provider’s expenses associated with such audit.

7. Confidential Information.

  • (a) Confidential Information. “Confidential Information” means all non-public information, whether business or technical in nature, that the other Party designates as being confidential, or any other information that, by its nature, should reasonably be considered confidential, including, but not limited to, information concerning business methods, pricing, business plans, new product launches, customer and vendor information, internal policies and procedures, and other financial information. For the avoidance of doubt: (i) Customer’s Confidential Information includes Customer Data, and (ii) Provider’s Confidential Information includes, the fees and pricing under the Order Forms, the Feedback, Performance Data, Aggregated Statistics, the Technology, and any proprietary and non-public portions of any other Provider IP made available or disclosed in connection with this Agreement). Information will not be deemed confidential if it (A) was known to the receiving Party and was acquired through proper methods, prior to its receipt from the disclosing Party, as evidenced by written records of the receiving Party; (B) is now or later becomes (through no act or failure on the part of the receiving Party) generally known through no breach of this Agreement by the receiving Party; (C) is supplied to the receiving Party by a third Party that is free to make that disclosure without restriction; or (D) is independently developed by the receiving Party without use of or reference to any Confidential Information provided by the disclosing Party.
  • (b) Protection. The receiving Party shall (i) not disclose Confidential Information to any third party without the prior written consent of the disclosing Party (except to the receiving Party’s directors, employees, agents or subcontractors (“Representatives”) to the extent such disclosure is necessary for the performance of this Agreement and who have agreed to be bound by restrictions similar to those set forth in this Section or except as may be required by law), (ii) shall not make use of any of the other Party’s Confidential Information except in its performance of its obligations or exercise of its rights under this Agreement, and (iii) use at least the same degree of care to safeguard Confidential Information that it uses to protect its own confidential and proprietary information, but in no event less than a reasonable degree of care. The receiving Party accepts responsibility and shall remain liable for the actions of its Representatives, including any breach of this Section by such Representatives.
  • (c) Other Disclosures. The receiving Party may disclose Confidential Information without violating its confidentiality obligations hereunder to the extent such disclosure is required by law or order of a court, administrative agency, or other governmental body to be disclosed by the receiving Party, provided that, in each such case the receiving Party provides the disclosing Party with prompt written notice of such order or requirement (except where prohibited by law) and reasonably assists the disclosing Party, at the disclosing Party’s expense, in seeking a protective order or other appropriate relief. Neither Party will disclose the terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except: (i) as required by applicable law, or (ii) in connection with a proposed merger, financing, or sale of such Party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality).
  • (d) Return. Upon termination of this Agreement, each Party shall promptly cease all further use of Confidential Information, return or destroy to the other Party all physical materials containing Confidential Information, whether the materials were originally provided by the disclosing Party or copied or otherwise prepared by the receiving Party, and erase or otherwise destroy any Confidential Information kept by either Party in electronic or other non-physical form. Notwithstanding the foregoing, the Parties acknowledge that (i) the receiving Party will not be required to return to the disclosing Party or destroy those copies of Confidential Information residing on the receiving Party’s backup or disaster-recovery systems, or which must be maintained for regulatory or policy purposes, and (ii) with respect to Customer Data, Provider’s sole obligation shall be the deletion of any Customer Data in its possession pursuant to Provider’s then-current data retention and deletion processes. Termination or expiration of this Agreement (for any reason) will not affect each Party’s continuing obligations under this Section.

8. Intellectual Property Ownership; Feedback.

  • (a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
  • (b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data.
  • (c) Feedback. If Customer or any of its Users send or transmit any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the SaaS Service or any other Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider may, but is not obligated, to use such Feedback without any attribution or compensation to any Party. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, any ideas, inventions, know-how, concepts, techniques, or other intellectual property rights embodied in or covering the Feedback.

9. Limited Warranty and Warranty Disclaimer.

  • (a) Provider does not make any representations or guarantees regarding uptime or availability of the SaaS Service except as specifically set forth in Exhibit A. The remedies set forth in Exhibit A are Customer’s sole remedies and Provider’s sole liability under the limited warranty set forth in this Section 9(a).
  • (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE SAAS SERVICE, TECHNOLOGY, DOCUMENTATION, SUPPORT, IMPLEMENTATION SERVICES AND ANY OTHER SERVICES OR MATERIALS PROVIDED BY PROVIDER HEREUNDER ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SAAS SERVICE OR TECHNOLOGY (OR ANY COMPONENT THEREOF), DOCUMENTATION, SUPPORT, IMPLEMENTATION SERVICES, OR ANY OTHER SERVICES OR MATERIALS PROVIDED BY PROVIDER HEREUNDER, OR RESULTS OF THE USE OF ANY OF THE FOREGOING, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY PRODUCTS), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. THE AI OUTPUT IS GENERATED THROUGH MACHINE LEARNING PROCESSES AND IS NOT TESTED, VERIFIED, ENDORSED OR GUARANTEED TO BE ACCURATE, COMPLETE OR CURRENT BY PROVIDER. CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING THAT ANY AI OUTPUT IS ACCURATE PRIOR TO CUSTOMER’S USE OR RELIANCE ON SUCH AI OUTPUT.

10. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $5,000 WHICHEVER IS LESS.

11. Basis of the Bargain. The warranty disclaimer and limitation of liability set forth above in Sections 9 and 10 are fundamental elements of the basis of the agreement between Provider and Customer. Provider would not be able to provide the SaaS Service or other services hereunder on an economic basis without such limitations. THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. PROVIDER DISCLAIMS ALL LIABILITY OF ANY KIND WITH RESPECT TO PROVIDER’S LICENSORS AND SUPPLIERS. THE WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF PROVIDER’S LICENSORS AND SUPPLIERS.

12. Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider and its affiliates, and each of their respective employees, officers, directors, and representatives from and against any and all losses, damages, liabilities, and costs (including attorneys’ fees) (collectively, “Losses”) incurred by Provider resulting from any claim, suit, action, or proceeding brought by a third party, including, any User (each, a “Third-Party Claim”) arising from or relating to: (a) Customer Data, including any allegations that the Customer Data violates applicable law (including, any Data Protection Laws) or infringes or misappropriates any intellectual property, publicity, confidentiality, proprietary, or privacy right of any third party; and/or (b) Customer’s or any User’s (i) negligence or willful misconduct; (ii) use of the SaaS Service or any other Provider IP in a manner not authorized by this Agreement (including, without limitation, the AUP); (iii) use of the SaaS Service in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; (iv) modifications to the SaaS Service not made by Provider; or (v) breach or violation of any AI Policies or any terms and conditions, policies, orders, or other agreements and/or guidelines applicable to any Third Party Products. Provider will (A) promptly notify Customer in writing of any such Third Party Claim (provided that, a delay in providing notice does not excuse these indemnity obligations unless Customer is prejudiced by such delay), and (B) cooperate and, at the Customer’s request and expense, assist in such defense; provided that, Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement.

13. Term and Termination.

  • (a) Term. Unless earlier terminated in accordance with the terms of this Agreement, the term of this Agreement will commence on the Effective Date and will continue as long as any Order Form is in effect.

  • (b) Order Forms; Subscriptions. Each Order Form shall commence on the effective date thereof and, unless earlier terminated, continue until the expiration of the Subscription Term set forth therein (including any renewals thereof). Each Subscription, and (subject to Section 6(a)) the corresponding periodic Subscription fees set forth in an Order Form, shall automatically renew for successive terms equal in duration to the initial Subscription Term, or at any other renewal term duration as agreed by the Parties in writing, unless either Party provides written notice of non-renewal to the other Party at least thirty (30) days before the end of the then-current Subscription Term.

  • (c) Termination. In addition to any other express termination rights set forth in this Agreement:

    • (i) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 7;
    • (ii) either Party may terminate this Agreement upon the material breach of this Agreement by the other Party, effective (A) on written notice to the other Party, if such breach is incapable of cure; or (B) 30 days after written notice to the breaching Party, if such breach is capable of cure, but remains uncured after such 30-day period;
    • (iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; and
    • (iv) If a third-party initiates a claim, suit, action, or proceeding that the SaaS Service or Technology, or any use of the SaaS Service infringe or misappropriate such third party’s intellectual property rights or such a claim, suit, action or proceeding appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the SaaS Service or Technology, or any component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use of the SaaS Service. If Provider determines, in its sole discretion, that neither alternative is commercially reasonable, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.

  • (d) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, for any reason; (i) Customer shall, and shall ensure its Users, immediately (A) discontinue use of the SaaS Service and any other Provider IP made available hereunder, and (B) delete and permanently erase all copies of the Applications from Authorized Devices in Customer’s or any Authorized User’s possession or control; (ii) without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the Provider’s Confidential Information and certify in writing to the Provider that the Provider’s Confidential Information has been deleted or destroyed; and (iii) Customer will pay to Provider any amounts due and payable by Customer for the SaaS Service or other services provider hereunder, including all Subscription fees for the remainder of the then-current Subscription Term, that remain unpaid as of, the effective date of termination and/or expiration. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.

  • (e) Survival. This Section 13(e) and Sections 1, 2(c), 2(d), 2(e), 2(f)(iii), 3(a), 4(a), 4(d), 4(e), 6, 7, 8, 9(b), 10, 11, 12, 13(d) and 15 will survive any termination or expiration of this Agreement. No other provisions of this Agreement will survive the expiration or earlier termination of this Agreement.

14. Modifications to this Agreement.

  • (a) Generally. Provider reserves the right to change, modify or update this Agreement at any time, subject to this Section. Except as otherwise stated in this Section, all updates and modifications to this Agreement will be effective from the day they are posted at https://buildr.com/legal/master-service-agreement, or through the user interface of the SaaS Service, as indicated by the “Last Updated” date set forth above. Customer and/or its Users may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the SaaS Service, and (except as otherwise set forth below) Customer’s or any of its User’s continued use of the SaaS Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
  • (b) Material Changes. Provider will provide Customer reasonable prior notice of any material changes to this Agreement (“Material Changes”) by email. If Customer does not agree to Material Changes, then prior to the effective date of such Material Changes (as specified in the email notice to Customer), Customer may elect one of the following (as applicable):
    • (i) Object to the Material Changes by notifying Provider of the specific objections via email at success@buildr.com. Unless otherwise mutually agreed upon by the parties in writing, following Provider’s receipt of Customer’s objection notice in accordance with the foregoing, the version of this Agreement prior to such Material Changes shall remain in effect until the end of Customer’s then-current Subscription Term (subject to any non-material updates, which shall take effect as set forth herein and are not subject to any right of objection or termination remedies herein). Upon any renewal of the Subscription Term the then current version of this Agreement shall take effect.
    • (ii) Elect to terminate this Agreement by providing written notice to Provider by email at success@buildr.com, provided that, any amounts due and payable by Customer for the SaaS Service and/or Implementation Services that remain unpaid as of the effective date of termination shall become immediately due and payable, including all Subscription fees for the remainder of the Subscription Term, and no refunds shall be provided for prepaid and unused Subscription fees or other amounts paid hereunder.
  • Customer’s rights in this Section 14(b) states Customer’s sole and exclusive remedy for any changes or modifications to this Agreement that Customer does not agree with. If Customer does not notify Provider of its objections or election to terminate in accordance with the foregoing, Customer’s or any of its User’s continued use of the SaaS Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

15. Miscellaneous.

  • (a) Third Party Rights. Except with respect to App Distributors as expressly set forth in Section 2(f)(iii), this Agreement is not intended to grant rights to anyone except Customer and Provider, and in no event shall this Agreement create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of this Agreement are not subject to the consent of any other person.
  • (b) Entire Agreement. This Agreement, together with the AUP and any other documents incorporated herein by reference and all related Exhibits, and the Order Form, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Order Form; (ii) second, the Exhibits to this Agreement; (iii) third, this Agreement, excluding its Exhibits; and (iv) fourth, any other documents incorporated herein by reference.
  • (c) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective: (i) when delivered personally; (ii) one business day after deposit with a nationally-recognized overnight courier, with written confirmation of receipt; (iii) one business day after transmission by electronic mail; or (iv) three business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.
  • (d) Force Majeure. In no event will either Party be responsible or liable for any failure or delay in the performance of its obligations under this Agreement (other than obligations to make payments required by this Agreement) arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer services; it being understood that each Party will use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances.
  • (e) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  • (f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  • (g) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. This Agreement (including without limitation, the SaaS Service, Technology, and any services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the Orange County, California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
  • (h) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. Provider may, without Customer’s consent, freely assign or transfer this Agreement (including, but not limited to, any of its rights or obligations under this Agreement) and may delegate the performance of any services hereunder to its affiliates, employees, contractors, and subcontractors. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
  • (i) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules that prohibit or restrict the export or re-export of the SaaS Service, Technology, Documentation, or any Customer Data outside the U.S., and complete all required undertakings related thereto (including obtaining any necessary export license or other governmental approval).
  • (j) U.S. Government Rights. Each of the Documentation and the software components that constitute the SaaS Service and/or Technology 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. Accordingly, if Customer is an agency of the U.S. Government or any contractor therefor, Customer only receives those rights with respect to the SaaS Service, Technology and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government users and their contractors.
  • (k) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
  • (l) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including .pdf) or other reliable electronic means and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

Exhibit A

SERVICE LEVELS AND SUPPORT

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Master Service Agreement to which this Exhibit is attached.

A. Service Level Agreement

Provider has a service-level objective for the SaaS Service of 99.9% availability, 24 hours a day, 7 days a week, 365 days a year, excluding downtime resulting from (i) problems caused by factors outside of Provider’s reasonable control, (ii) Customer’s systems or equipment, (iii) scheduled maintenance, and (iv) third party products, services or equipment not supplied by Provider.

B. Support

During the Term, Customer will have access to technical support in respect of the SaaS Service via telephone, online chat, email, or tutorials during the hours of 8:00 a.m. to 5:00 p.m. Pacific Time Monday through Thursday, excluding holidays. Support does not include training or implementation of the SaaS Service and does not include general training for use of personal computers or other online software.

Once Provider receives a Support request from Customer, Provider will use commercially reasonable efforts to fix any errors that Customer is experiencing, or answer any questions the Customer might have regarding use of the SaaS Service.

C. Maintenance

If a system failure occurs that creates an outage of the SaaS Service, Provider will use commercially reasonable efforts to end the outage as quickly as possible. Outages due to the Internet, hosting providers, and/or Customer or any of its User systems are outside Provider’s control and, in that case, Provider will assist the Customer in the diagnosis but might not be able to resolve the issue.

Provider or hosting providers will occasionally perform proactive and preventative maintenance, such as updating servers and routers with security patches, and upgrades to software. Provider will use commercially reasonable efforts to perform such maintenance in respect of the SaaS Service during hours that are convenient to the Customer.

D. Exclusions

Provider will have no obligation to provide Support to Customer in the event that (i) the SaaS Service has been changed, modified, or damaged by Customer, its Users, or anyone other than Provider, (ii) the problem is caused by Customer’s or its User’s negligence, misconduct, or misuse of the SaaS Service, or other causes beyond the reasonable control of Provider, or (iii) the problem is due to third party software. The Support does not cover the support of any Third Party Products or any third party software which integrates with the Software. In addition, the Support does not include the following: (a) Customer’s failure to comply with operating instructions contained in the Documentation; (b) installation, configuration, management, and operation of Customer’s or any third party applications; (c) interfaces or data formats other than those included with the SaaS Services; (d) any training; or (e) any support for or availability relating to Provider’s application programming interfaces or other resources, software to tools, made available by Provider to Customer under and subject to the API License Agreement available at https://buildr.com/legal/api-terms-and-conditions.

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