BUILDEREDGE PROFESSIONAL SERVICES AGREEMENT

BUILDEREDGE PROFESSIONAL SERVICES AGREEMENT

IMPORTANT – PLEASE READ THIS DOCUMENT CAREFULLY.

THIS PROFESSIONAL SERVICES AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE CUSTOMER IDENTIFIED IN THE ORDER FORM THAT THIS AGREEMENT IS ASSOCIATED WITH, AND CLOUD CYGNUS LIMITED (“COMPANY”), FOR THE PROVISION OF PROFESSIONAL SERVICES REGARDING COMPANY’S ONLINE SOFTWARE SOLUTIONS (THE “PROFESSIONAL SERVICES”).

  1. Definitions
    • Customer Materials” means any technical or non-technical information, materials, components, software, etc., possessed by, or known or accessible to Customer or third parties which Customer has access to, and which the Company deems necessary for the Company’s provision of the Professional Services, except for information, materials, components, software, etc. that originates from the Company.
    • Confidential Information” means information regarding the business, proprietary technology, products, or services, existing or under development, of the disclosing Party or of its licensors, suppliers or business partners, including data, know-how, algorithms, drawings, communication protocols, programs, software, specifications, modifications, applications, designs and trade secrets, technical, marketing, financial, employee and planning information, provided that such information is in writing or other tangible form and is clearly marked as “proprietary” or “confidential” when disclosed to receiving Party, or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary by the disclosing Party, or if such information is not in tangible form, that such information is identified as “proprietary” or “confidential” when disclosed and summarized in a written document which is marked “proprietary” or “confidential” and is delivered to the receiving Party within 30 (thirty) days after date of disclosure. Notwithstanding the above, Confidential Information does not include: any information that is or through no fault of the receiving Party has become, generally available to the public and/or was disclosed to the receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions.
    • Order Form” means the means the form and the proposal that it is attached to which together, specify, among others, the Customer’s details and the Fees applicable to this Agreement.
    • Deliverables” means those materials that the Company shall produce and deliver to the Customer in the course of the provision of the Professional Services.
    • Statement of Work” or “SOW” means the mutually agreed to specification of the Professional Services to be rendered, specifying, among others: (i) the precise nature of the professional services requested, (ii) the Deliverables, if any, (iii) the requested timetable for performance, (iv) Company’s estimate as to the number of Professional Service hours involved; and (v) the Customer Materials, if any.
    • Intellectual Property Rights” means all rights, titles and interests evidenced by or embodied in (i) works of authorship, copyrights, excluding moral rights, registrations and applications for registration thereof; (ii) any invention, discovery, concept, composition, data, experiment, material, method, process, product and result; (iii) patents, patent applications and all related continuations, divisional, reissue, utility models, design patents, applications and registrations thereof, certificates of inventions; (iv) trade secrets, know-how, designs, prototypes, enhancements, improvement, work-in progress, research and development information; (v) trademarks, trademark applications, trade names, logos, product names, product manuals, training materials, documentation and other support materials, whether or not patented, copyrighted or trademarked; (vi) software, firmware, network or product architectures, specifications, drawings, flow charts; and (vii) all other proprietary rights relating to the foregoing, as well as any developments or derivative works in respect thereof.
  2. Interpretation. As used herein, the term “including”, means including, but not limited to, and without limitation, to the generality of the preceding phrase.
  3. Provision and Management of Professional Services
    • In consideration of the Customer’s payment of all applicable fees, and subject to the Customer’s compliance with all undertakings herein, the Company shall provide the Customer those certain professional services set forth in the SOW mutually agreed to by the parties.
    • Estimates. Customer acknowledges that requested timetable for performance of the Professional Services, the Company’s estimate as to the number of Professional Service hours involved, and the overall fees, any of which may be indicated in the SOW or in the Order Form, are merely estimates based on the information provided to the Company and on the Company’s experience and best judgment. These are not binding and are subject to change or fluctuations.
    • Customer Materials. Customer will lawfully obtain, at its sole cost and expense, all licenses and consents for Customer Materials, which are necessary for the Company to utilize the Customer Materials as contemplated by this Agreement. Customer represents and warrants that the Customer Materials, their delivery to the Company and their use by the Company as contemplated by this Agreement do not and will not violate or infringe any rights of third parties, or the licensing terms governing use of any third party materials that may have been used with or in the Customer Materials.
    • Use of Customer Materials. Company may use the Customer Materials, by itself, or through others on the Company’s behalf, for the purpose of the Company’s performance of the Professional Services. Such license includes, among others, copying, distributing, posting and making derivative works of the Customer Materials, to the extent the Company deems necessary to effectuate the performance of the Professional Services.
    • Steering Committee. The parties will hold a weekly steering committee meeting to track implementation progress on the SOW and provide managerial assistance where required. The Customer shall ensure that its steering committee attendees represent the different business roles at the Customer. the Company’s representative on the steering committee will be the delivery manager appointed for the implementation of the SOW.
  4. Fees and Out of Pocket Expenses
    • Professional Service Fees. By entering into this Agreement, the Customer hereby agrees to pay the hourly fees specified in the Order Form, in accordance with the work hours that the Company actually dedicated in the provision of the Professional Services pursuant to the SOW, as those hours are logged by the Company.
    • The Customer agrees to reimburse the Company for reasonable out-of-pocket travel expenses, including transportation, lodging, and meals incurred, in rendering the Company’s Professional Services to the Customer. the Company shall obtain Customer’s prior written authorization before incurring such expenses.
    • The fees and reimbursements are exclusive of all taxes, levies, or duties imposed by any authority, as well as bank charges and similar charges. The Customer is responsible for payment of paying all such taxes, levies, duties, and charges excluding only taxes based solely on the Company’s income.
    • Billing Information. Customer is responsible to provide the Company with complete and accurate billing and contact information, and to promptly notify the Company in the event of any change thereof.
    • Periodic Statement or Invoice. The Company will issue a periodic invoice or statement of account to the Customer, for the applicable fees and reimbursements, by email. All amounts specified in the invoice or statement of account are due within 30 days of the Customer’s receipt of such document. Payment obligations are non-cancelable without any exception and all amounts paid are nonrefundable. All amounts are quoted in and must be paid in USD.
    • Errors in Statement or Invoice. The Company urges the Customer to contact the Company in writing within 30 days of receiving an invoice or statement of account if the Customer is in the opinion that it is incorrect.
    • Overdue Fees. Overdue fees shall bear interest in a rate of 1.5% per month but no more than the maximum permitted by law, plus all expenses of collection. If the Customer or the Company initiates termination of this Agreement, the Customer will be obligated to pay the balance due on its account.
  5. Intellectual Property
    • Company’s IP in Deliverables. The Company exclusively owns, as of the time of inception, and in perpetuity, all Intellectual Property Rights subsisting in Deliverables that the Company, in its discretion, determines to be as part of the Company’s online software solution (the “Retained Rights”), are and will be solely and exclusively owned by the Company.
    • License to Customer. Subject to the Customer’s payment of all applicable fees, the Company grants the Customer a perpetual, royalty-free, worldwide, non-exclusive, sub-licensable and transferrable license, to use, and have used, the Retained Rights, by itself or through others. This includes, among others, the right to copy, distribute and making derivative works of the Retained Rights, for any business purposes.
    • Customer’s IP in Deliverables. Subject to the Customer’s payment of all applicable fees, all Intellectual Property Rights subsisting in any in Deliverables that the Company, in its discretion, determines to be as part of Customer’s local implementation, excluding Intellectual Property Rights that are owned by a third party, are and will be solely and exclusively owned by the Customer as of the time of their inception (“Assigned Rights”). Subject to the Customer’s payment to the Company of all applicable fees, the Company hereby irrevocably assigns to the Company, all its Assigned Rights.
    • Customer Logo. Customer grants the Company a right to use and display the Customer’s name and logo for marketing purpose to indicate that the Customer is a customer of the Company (including on the Company’s website), which use and display shall be in accordance with any reasonable usage guidelines that the Customer provides the Company. The Company acknowledges that all use of the Customer’s name and logo will inure to the benefit of the Customer.
  6. Term and Termination
    • This Agreement commences upon the execution of the Order Form by both parties and shall terminate when the provision of the Professional Services by the Company in accordance with the SOW is completed.
    • Termination for Breach. Either Party may terminate this Agreement by delivering a written termination notice to the other Party (“Default Notice”), if the other Party materially breaches this Agreement and has not cured such breach within thirty (30) days following its receipt of the Default Notice.
    • Consequences of Termination. Upon termination of this Agreement for any reason any amounts accrued or owed to the Company under this Agreement will become immediately due and payable. Provisions in this Agreement that by their nature ought to survive its termination, will so survive.
  7. Confidentiality
    • Confidentiality Obligations. Each Party, in its capacity as a “Receiving Party” will: (1) protect Confidential Information of the other Party (the “Disclosing Party”) from any unauthorized use, access, or disclosure, in the same manner it protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; (2) keep in strict confidentiality any and all Confidential Information of the Disclosing Party; (3) not use any Confidential Information of the Disclosing Party for any purpose other than for the execution of this Agreement; and (4) disclose the Confidential Information of the Disclosing Party only to its employees or contractors who are subject to a confidentiality obligation no less restrictive than the confidentiality duty provided in this section.
    • Permitted Disclosures. Without derogating from the aforesaid, notwithstanding, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party only to the extent that such disclosure is (1) approved in advance and writing by the Disclosing Party; (2) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (3) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing, and at the Disclosing Party’s request and expense, cooperates with the Disclosing Party in any lawful action to contest or limit the scope of such required disclosure.
    • Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, the Receiving Party shall promptly return and hand over to the Disclosing Party all Confidential Information of the Disclosing Party and not retain any copies (whether on magnetic media or otherwise) of such Confidential Information. For avoidance of any doubt all copies of such Confidential Information shall be permanently erased by the Receiving Party that will certify in writing that it has fully complied with its obligations under this Section ‎3.
  8. Warranty
    • Warranties Provided. The Company warrants that (i) the Professional Services provided hereunder will be performed in a professional and workmanlike manner and (ii) the Deliverables will conform in all material respects to the SOW.
    • Remedy for Breach of Warranty. In the event that the Professional Services or Deliverables fail to conform to the foregoing warranty, the Customer will notify the Company within fifteen (15) days following the earlier of: (1) completion of the non-conforming Professional Services; or (2) the date on which such failure becomes known to the Customer. As the sole and exclusive remedy of the Customer for breach of the foregoing warranty, the Company shall correct the non-conformity or re-perform the non-conforming Professional Services at no additional cost to the Customer. the Company shall not be liable for failures caused by the inclusion or use of any hardware, software, or other material, not provided by the Company (including Customer’s own systems and Customer Materials) and/or the negligence or willful misconduct of the Customer.
    • DISCLAIMER OF ALL OTHER WARRANTIES. TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EXCEPT AS SPECIFIED ABOVE, THE PROFESSIONAL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS.” NEITHER THE COMPANY NOT ITS EMPLOYEES OR CONSULTANTS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE PROFESSIONAL SERVICES OR DELIVERABLES. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THE COMPANY AND ITS EMPLOYEES AND CONSULTANTS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
  9. Limitation of Liability
    • EXCLUSION OF CERTAIN DAMAGES. EXCEPT FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS HEREIN, BREACH OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR A PARTY’S WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY HAVE LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PROFESSIONAL SERVICES, OR THIS AGREEMENT, WHETHER SUCH DAMAGE IS ACTIONABLE UNDER A CONTRACT CLAIM, TORT CLAIM (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR BASIS OF LIABILITY.
    • LIABILITY CAP. EXCEPT FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS HEREIN, BREACH OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, THE INDEMNITY OBLIGATIONS HEREIN OR A PARTY’S WILLFUL MISCONDUCT, IN NO EVENT WILL CLOUD CYGNUS’S AGGREGATE LIABILITY PURSUANT TO THIS AGREEMENT, EXCEED THE AMOUNTS PAID OR PAYABLE BY THE CUSTOMER UNDER THIS AGREEMENT FOR ONE FULL YEAR, WHETHER SUCH DAMAGE IS ACTIONABLE UNDER A CONTRACT CLAIM, TORT CLAIM (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR BASIS OF LIABILITY.
    • FORCE MAJEURE. NO DELAY OR FAILURE IN PERFORMANCE BY EITHER PARTY WILL BE CONSTRUED AS A BREACH OF THIS AGREEMENT IF CAUSED BY EVENTS OR CIRCUMSTANCES BEYOND THAT PARTY’S REASONABLE CONTROL, INCLUDING ACT OF GOD, GOVERNMENTAL ACTIONS, FLOOD, FIRE, EARTHQUAKES, CIVIL UNREST, TERRORISM, VANDALISM, STRIKES, AND TELECOMMUNICATIONS OR NETWORK FAILURES OR DELAYS.
  10. Indemnities
    • COMPANY’S IP INDEMNITY TO CUSTOMER. AS THE CUSTOMER’S EXCLUSIVE REMEDY AGAINST CLOUD CYGNUS OR ANY OF ITS LICENSORS OR SUPPLIERS FOR ANY THIRD PARTY’S INFRINGEMENT CLAIM, CLOUD CYGNUS WILL DEFEND THE CUSTOMER AT ITS OWN EXPENSE AND HOLD THE CUSTOMER HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY’S ACTION BASED ON THE CLAIM THAT THE DELIVERABLES, AS PROVIDED, INFRINGES A UNITED STATES PATENT, COPYRIGHT OR TRADEMARK ONLY.
    • COMPANY’S OPTIONS IN CASE OF IP CLAIM. WITHOUT DEROGATING THE AFORESAID, CLOUD CYGNUS MAY, AT ITS DISCRETION AND EXPENSE, AND AS THE CUSTOMER’S SOLE REMEDY UNDER THIS AGREEMENT: (1) PROCURE THE CUSTOMER’S RIGHT TO CONTINUE USING THE DELIVERABLES; (2) REPLACE OR REMOVE THE INFRINGING COMPONENT FROM THE DELIVERABLES WHILE MAINTAINING COMPARABLE FUNCTIONALITY OF THE DELIVERABLES; (3) IMMEDIATELY TERMINATE THIS AGREEMENT AND REFUND ANY AMOUNT PRE-PAID ON ACCOUNT OF THE REMAINDER TERM OF THIS AGREEMENT. NOTWITHSTANDING THE AFORESAID CLOUD CYGNUS WILL NOT DEFEND OR HOLD HARMLESS FOR ANY INFRINGEMENT THAT ARISES OUT OF THE CUSTOMER’S BREACH OF THIS AGREEMENT OR USE OF THE DELIVERABLES AFTER THEY HAVE BEEN MODIFIED BY THE CUSTOMER AND/OR A THIRD PARTY AND/OR COMBINED WITH ANOTHER COMPONENT WITHOUT CLOUD CYGNUS’S PRIOR WRITTEN CONSENT, OR USE OF THE DELIVERABLES IN A MANNER THAT INFRINGES THIRD PARTIES RIGHTS, INCLUDING IN FORMS, SOFTWARE, ETC.
    • CUSTOMER’S INDEMNITY TO COMPANY. THE CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS CLOUD CYGNUS AND/OR ITS LICENSORS AND/OR SUPPLIERS AND/OR AFFILIATES AND/OR SUBSIDIARIES AND/OR PARENT CORPORATIONS AND/OR SHAREHOLDERS AND/OR ANYONE ACTING ON THEIR BEHALF, FROM AND AGAINST ANY AND ALL COSTS, DAMAGES, LOSSES AND EXPENSES (INCLUDING LEGAL COSTS) THAT OCCUR IN CONNECTION WITH (I) ANY BREACH OF THE CUSTOMER’S REPRESENTATIONS AND WARRANTIES HEREIN; (II) CLAIMS THAT ARE EXCLUDED FROM CLOUD CYGNUS’S INDEMNITY OBLIGATIONS ABOVE.
    • INDEMNITY PROCEDURES. THE CUSTOMER’S AND THE COMPANY’S RESPECTIVE INDEMNITY OBLIGATIONS ARE CONDITION ON THE INDEMNIFIABLE PARTY: (1) PROMPTLY GIVING THE INDEMNIFYING PARTY: (A) A WRITTEN NOTICE OF SUCH CLAIM; (B) SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF SUCH CLAIM; (C) ALL AVAILABLE INFORMATION AND ASSISTANCE; (2) NOT ADMIT TO ANY FACT OR ALLEGATION WITHOUT OBTAINING INDEMNIFYING PARTY’S PRIOR WRITTEN CONSENT.
  11. Miscellaneous
    • Integrated Agreement. This Agreement together with the Order Form, comprises the entire agreement between the Customer and the Company, and supersedes all prior or contemporaneous negotiations, discussions and/or agreements, whether written or oral, between the parties regarding the provision of Professional Services.
    • If any provision of this Agreement is deemed invalid or unenforceable by any country and/or competent court or government agency having jurisdiction, that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable and the remaining provisions will remain in full force and effect.
    • This Agreement may not be assigned by the Customer without the prior written approval of the Company, (such approval not to be unreasonably withheld) but may be assigned without the Customer’s consent by the Company in connection with any reorganization (including merger, consolidation, or similar transaction) involving (directly or indirectly) involving and/or a sale, lease, license, or other disposition of all substantially all of the Company’s assets.
    • Inaction Is Not a Waiver. The failure of a party to enforce any right or provision under this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by that party in writing.
    • Parties’ Status. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between the Customer and the Company and/or its suppliers and/or affiliates and/or subsidiaries and/or parent corporations and/or anyone acting on their behalf.
    • Governing Law and Venue. This Agreement shall be governed by Israeli law without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement and/or the Service will be subject to the exclusive jurisdiction of the Israeli courts located in Tel Aviv. Notwithstanding the foregoing: (a) an impleader claim pursuant to the indemnity obligations herein may be asserted in any court adjudicating the claim that is subject to indemnification; and (b) the parties may apply to any court of competent jurisdiction for temporary or preliminary injunctive relief.
    • Email Notices. Notices by one party to another transmitted by email to the recipient’s email on record shall be deemed sufficient for the purposes of this Agreement.

Today, BuilderEdge helps hundreds of construction projects increase control, communication, and productivity and ultimately enhance quality, growth and profitability. We learn from every client and project, from single-family homes to commercial skyscrapers, and keep improving our software for greater added value. We offer personal service, training and customization, to deliver the highest utilization and value of the BuilderEdge solution.

Sign up for Free Demo