BUILDEREDGE SUBSCRIPTION AGREEMENT
IMPORTANT – PLEASE READ THIS DOCUMENT CAREFULLY: THIS SUBSCRIPTION AGREEMENT (“AGREEMENT“) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) AND CLOUD CYGNUS LIMITED (“THE COMPANY“) FOR USE OF THE COMPANY’S ONLINE SOFTWARE-AS-A-SERVICE SOLUTIONS AND/OR ANY OTHER THE COMPANY SERVICE AVAILABLE VIA THE WEBSITE (COLLECTIVELY: THE “SERVICE”, or “BUILDEREDGE).
BY AND UPON ASSENTING TO THIS AGREEMENT (WHETHER BY CLICKING AN “I ACCEPT” OR SIMILAR BUTTON, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT), YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANY LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THE AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” HEREIN SHALL REFER TO SUCH ENTITY.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU MAY NOT USE THE SERVICE AND/OR INSTALL ANY COMPONENT OF THE BUILDEREDGE SYSTEM.
1. Definitions. The following terms shall have the meaning prescribed therewith:
1.1. “Account” means your account at Salesforce.com.
1.2. “Business Day” means an official working day at the country where the official registered office of a Party is located.
1.3. “Business Hours” means 09:00 – 17:00 EDT;
1.4. “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, without limitation, 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;
1.5. “Documentation” means any manual and/or technical guide and/or publication, relating to the Service;
1.6. “Effective Date” means the effective date indicated on the order that references this Agreement, or, if no such order form is applicable, then the date upon which you clicked the “I accept” button and/or installed, downloaded, copied or used the Service or BuilderEdge and/or any component thereof for any purpose;
1.7. “Subscription Term(s)” means the time period(s) during which Users paying subscription fees may use the Service;
1.8. “Party” or “Parties” means the Company or you or both, as the case may be.
1.9 “User(s)” means any individual authorized by you to use the Service;
1.10. “User(s) Data” means any data, information (including without limitation personally identifiable information), content, templates, forms, or material provided, made available, or submitted by you to the Service and/or retrieved by the Service from your Account;
1.11. “Website” means http://www.cloudcygnusbuilderedge.com or any other website designated by the Company.
- Use. Subject to the terms and conditions of this Agreement, you may access and use the Service by such number of User(s) subscribed and paid for by you, on computers within your internal network, on permissible platforms and configurations, in accordance with the Documentation and solely for your internal business purposes of creating reports and/or other output available and permitted by the Service. To avoid any doubt, all rights not expressly granted under this Agreement are reserved by the Company. Please be advised that the Service is powered by and based on Salesforce.com account, pursuant to the following Salesforce terms and conditions: http://www.sfdcstatic.com/assets/pdf/misc/salesforce_MSA.pdf.
- Additional Users. Only upon the Company’s acceptance of new order submitted by you, the Service shall be made available to additional Users on the terms and conditions set forth herein and in the accepted new order and for the duration of the preexisting (initial or renewal) subscription term. You will be responsible for payment of any applicable additional subscription fees in full as of the month in which your new order is accepted by the Company.
- Use Limitations. You may not, under any circumstances (1) license, sublicense, sell, resell, use the Service for the benefit of any third party and/or commercially exploit, transfer, assign or make the Service, BuilderEdge or any related content available to any third party, unless the Company has authorized such use or act in advance and in writing; (2) modify, port, adapt, make derivative works based upon the Service or any related content, reverse engineer, decompile disassemble or otherwise attempt to discover the source code of any Service’s and/or BuilderEdge’s component; (4) use or access the Service for benchmarking or competitive purposes; or (5) attempt in any way to misuse the License, including, without limitation by unbundling without explicitly being permitted to by the Company, components of the Service and/or the BuilderEdge; or create Internet “links” to the Service or “frame” or “mirror” any related content thereof on any other server and/or wireless and/or Internet-based device; or interfere in any manner with the Service and/or BuilderEdge.
- Intellectual Property Rights.
5.1 The Company and/or its licensors fully own all right,
title and interest in and to the Service and/or the BuilderEdge and/or any related content and/or component thereof, including all related patents, registered designs, trademarks and service marks (whether registered or otherwise), copyright, moral rights, database rights, design rights and other intellectual property rights, including those rights subsisting (in any part of the world) in inventions, drawings, performances, semiconductor topographies, improvements, discussions, business names, goodwill and the style of presentation of goods or services and in the applications for the protection thereof throughout the world, and any information provided by you or any other party in connection with the Service including, but not limited to, enhancement requests, recommendations, ideas, suggestions. All names and logos associated with the Service are trademarks of the Company or third parties.
5.2 You grant the Company a right to use and display your company name and logo for marketing purpose to indicate that you are a customer of the Company (including on the Company’s website), which use and display shall be in accordance with any reasonable usage guidelines you provide the Company. The Company acknowledges that all use of your company name and logo will inure to your benefit.
- User(s) Data.
6.1. You are solely responsible for User(s) Data, its integrity, accuracy, quality, reliability, compliance with legal requirements, and for any intellectual property ownership or right to use it. Without prejudice to the above, you will not make available to the Service or BuilderEdge, in any way, whether by posting, transmitting or any other way any User(s) Data that: (a) infringes or violates any rights, law or regulation, including, but not limited to, such that relate to privacy, publicity or intellectual property; or (b) contains any viruses or programming routines intended to damage, stealthily intercept or expropriate any system, data or personal information. The Company is under no obligation to review User(s) Data for accuracy or potential liability and does not own User(s) Data.
6.2. You retain all right, title and interest in and to the User(s) Data. Without prejudice to the aforesaid, you grant to the Company all necessary permits, authorizations, licenses and rights for the Company to provide the Service to you or as required by any applicable law, regulation, treaty or contract. You will be solely responsible for providing all User(s) Data required for the proper operation of the Service. The Company will not knowingly use or access any User(s) Data except as necessary to provide the Service and/or as otherwise authorized by you and/or as required by any authorized governmental agency.
7.1. Each Party (the “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.
7.2. 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.
7.3. 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 7.3.
7.4. Without derogating from the aforesaid, you may distribute copies of the Documentation only to User(s) in connection with use of the Service in accordance with the terms and conditions of this Agreement, and provided that such copies contain the same copyright and other proprietary notices that appear on and in the Documentation.
- Support. The Company will provide you commercially reasonable technical assistance (“Support“) for commercially reasonable number of events of a reproducible non-conformity in the Service causing the basic functions of the Service not to operate in substantial conformance with the applicable Documentation. The Support shall be provided during Business Hours, subject to prompt execution of all your obligations under this Agreement, and receipt by the Company of an applicable support call via email to firstname.lastname@example.org. The Company is under no obligation to Support Beta unpaid versions of the Services, and such Support, if at all, shall be provided at its sole discretion. You are solely responsible for providing, at your own expense, all network access to the Service, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Service.
Subscription Fees and Renewal.
9.1 Users may be internal users consisting of your employees, and/or external Users consisting of your subcontractors, consultants or customers. You must pay for each internal or external User, in accordance with the Company’s subscription fees for these types of Users. The Subscription fee for certain Users includes a certain scope of storage or use, as detailed in the order form or proposal accompanying this Agreement. You will be charged an overage charge, as detailed in the order form or proposal accompanying this Agreement, for any use exceeding such pre-included scope. In addition, you must order and pay at least 1 dedicated administrative User.
9.2 Subscription fees to be paid by you to the Company for the Service are described in the associated order form. Fees for the Service in case of renewal will be in accordance with the fees in effect at time of renewal, as determined by the Company at its sole discretion and notified to you at least 30 days prior to expiry of the Subscription Term or any renewal thereof, multiplied by the then-current number of total User(s) enrolled. Other services will be charged on an as-quoted basis. the Company’s fees are exclusive of all taxes, levies, or duties imposed by any authority, as well as bank charges and similar charges, and you are responsible for payment of all such taxes, levies, duties or charges, excluding only taxes based solely on the Company’s income. All amounts are quoted in and must be paid in USD.
- Billing and Payment. You are 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. The Company will issue an invoice to you, by email, on or shortly after you have confirmed your wish to continue using the Service following expiry of the trial period and on or before the expiration date for renewal periods. Subscription fees for each enrolled User are due in advance of the subscription period and each renewal term. Payment obligations are non-cancelable without any exception and all amounts paid are nonrefundable. The Company may invoice you for additional applicable fees for any Additional User(s) added to the service or allowed to use it without being paid for by you. The Company will also issue you a periodic invoice or statement of account, for any applicable overage charge. We urge you to contact us in writing within 30 days of receiving an invoice if you are in the opinion that it is incorrect. Overdue amounts 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 you or the Company initiates termination of this Agreement, you will be obligated to pay the balance due on your account. The Company reserves the right to impose a reconnection fee in the event the Service is suspended.
Term. This Agreement commences on the Effective Date and will remain in effect for a period of 12 (twelve) months thereafter (“Initial Term”), unless terminated earlier by either party pursuant to this Agreement. Thereafter this Agreement will automatically renew for additional one (1) year periods (each a “Renewal Term”), unless terminated earlier by either Party pursuant to this Agreement or unless either Party gives notice of non-renewal to the other Party by no later than 30 days before the end of the Initial Term or the then-current Renewal Term. Notwithstanding the aforesaid, the Company reserves the right to terminate any trial period, at any time without notice. The Initial Term together with any and all Renewal Terms is collectively referred to as the “Term.”
- Termination due to Material Breach. Notwithstanding any other provision herein, 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.
- Effect of Termination. Upon termination of this Agreement for any reason: (1) any amounts owed to the Company under this Agreement will become immediately due and payable; (2) each Party will return to the other all property of the other Party in its possession or control, and (c) the Company will remove all User(s) Data from BuilderEdge and all your access to or use of the Service will be immediately suspended. Provisions in this Agreement that by their nature are intended to survive termination or expiration of this Agreement, will so survive, including those under Sections 5, 6, 7, 10, 13, 16 and 17.
- Suspension. In the event of your breach of this Agreement (such as in of your failure to pay any undisputed amount payable under this Agreement within 14 days of its due date), the Company shall have the right to suspend or terminate your access to and use of the Service until you cure such breach, without derogating from any other right and/or remedy of the Company under this Agreement and/or any applicable law.
- Representations and Warranties.
15.1 Each Party represents and warrants that it has the full legal power and authority to enter into this Agreement.
16.3. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE COMPANY AND/OR ITS SUPPLIERS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT, AND THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” AND “AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY AND/OR ITS SUPPLIERS.
16.1. AS YOUR EXCLUSIVE REMEDY AGAINST THE COMPANY OR ANY OF ITS LICENSORS OR SUPPLIERS FOR ANY THIRD PARTY’S INFRINGEMENT CLAIM, THE COMPANY WILL DEFEND YOU AT ITS OWN EXPENSE AND HOLD YOU HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY’S ACTION BASED ON THE CLAIM THAT THE SERVICE, AS PROVIDED, INFRINGES A UNITED STATES PATENT, COPYRIGHT OR TRADEMARK ONLY, PROVIDED THAT YOU WILL (1) PROMPTLY GIVE THE COMPANY: (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 THE COMPANY’S PRIOR WRITTEN CONSENT. WITHOUT DEROGATING THE AFORESAID, THE COMPANY MAY, AT ITS DISCRETION AND EXPENSE, AND AS YOUR SOLE REMEDY UNDER THIS AGREEMENT: (1) PROCURE YOUR RIGHT TO CONTINUE USING THE SERVICE; (2) REPLACE OR REMOVE THE INFRINGING COMPONENT FROM THE SERVICE WHILE MAINTAINING COMPARABLE FUNCTIONALITY OF THE SERVICE; (3) IMMEDIATELY TERMINATE THIS AGREEMENT AND REFUND ANY AMOUNT PRE-PAID ON ACCOUNT OF THE REMAINDER TERM OF THIS AGREEMENT. NOTWITHSTANDING THE AFORESAID THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY INFRINGEMENT THAT ARISES OUT OF YOUR BREACH OF THIS AGREEMENT OR USE OF THE SERVICE AFTER IT HAS BEEN MODIFIED BY YOU AND/OR A THIRD PARTY AND/OR COMBINED WITH ANOTHER COMPONENT WITHOUT THE COMPANY’S PRIOR WRITTEN CONSENT OR USE OF THE SERVICE IN A MANNER THAT INFRINGES THIRD PARTIES RIGHTS, INCLUDING, BUT NOT LIMITED TO, IN FORMS, SOFTWARE, ETC.
16.2. YOU SHALL INDEMNIFY AND HOLD HARMLESS THE COMPANY 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 YOUR REPRESENTATIONS AND WARRANTIES; (II) THE COMPANY’S ACCESS TO, HANDLING OF, AND USE OF USER’S DATA OR YOUR CONFIDENTIAL INFORMATION; (III) THE COMPANY’S ACCESS TO YOUR ACCOUNT. NOTWITHSTANDING THE AFORESAID, INDEMNIFICATION IN CONNECTION WITH THIRD PART’S CLAIMS ARE SUBJECT TO THE COMPANY GIVING YOU: (1) A WRITTEN NOTICE OF SUCH CLAIM; (2) SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF SUCH CLAIM; (3) ALL AVAILABLE INFORMATION AND ASSISTANCE.
- Limitation of Liability
17.1. TO THE GREATEST EXTENT PERMISSIBLE UNDER LAW, EXCEPT FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS HEREIN, THE COMPANY WILL HAVE NO LIABILITY TO YOU 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 SERVICE, OR THIS AGREEMENT, WHETHER SUCH DAMAGE IS ACTIONABLE UNDER A CONTRACT CLAIM, TORT CLAIM (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR BASIS OF LIABILITY.
17.2. TO THE GREATEST EXTENT PERMISSIBLE UNDER LAW, THE COMPANY’S AGGREGATE LIABILITY PURSUANT TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THIS AGREEMENT FOR ONE FULL YEAR, WHETHER SUCH LIABILITY IS ACTIONABLE UNDER A CONTRACT CLAIM, TORT CLAIM (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR BASIS OF LIABILITY.
17.3. 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 WITHOUT LIMITATIONS, ACT OF GOD, GOVERNMENTAL ACTIONS, FLOOD, FIRE, EARTHQUAKES, CIVIL UNREST, TERRORISM, VANDALISM, STRIKES, AND TELECOMMUNICATIONS OR NETWORK FAILURES OR DELAYS.
18.1. This Agreement together with any associated the Company’s order form, comprises the entire agreement between you and the Company, and supersedes all prior or contemporaneous negotiations, discussions and/or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
18.2. No text or information set forth on any other purchase order, preprinted form or document (other than an associated the Company’s order form, if applicable) will modify the terms and conditions of this Agreement.
18.3. 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.
18.4. This Agreement may not be assigned by you without the prior written approval of the Company, (such approval not to be unreasonably withheld) but may be assigned without your consent by the Company in connection with (1) 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.
18.5. This Agreement is binding on you as well as your employees, employers, contractors and agents, and on any successors and assignees.
18.6. 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.
18.7. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between you and the Company and/or its suppliers and/or affiliates and/or subsidiaries and/or parent corporations and/or anyone acting on their behalf.
18.8. 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.
18.9. 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.