IMPORTANT PLEASE READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE BUILDICUS SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
This software as a service (SaaS) subscription agreement (the "Agreement") governs your use of the System (as defined below) and any related services provided by Buildicus, Inc., a California corporation, having its principal place of business at 5200 N. Palm Avenue, Suite 310, Fresno, California 93704 (hereafter “Buildicus”). You are referred to as "Customer" in this Agreement. If you use the System, or if you click "I agree" or take any other affirmative action indicating your acceptance of this Agreement, then you have agreed to these terms. If you are an agent or employee of the intended subscriber or user, you individually represent and warrant to Buildicus that you are authorized to bind that party to this Agreement. If you do not agree to this Agreement, then you are not authorized to use the System.
(a) Additional Features. “Additional Features” is defined in Section 6 below.
(b) Components. "Components" means the individual modules or products that make up the System. From time to time, new Components or features will be introduced to the System, and those Components or features may be restricted to specific Editions.
(c) Content. “Content” is defined in Section 2(f) below.
(d) Customer. “Customer” means the individual or entity that has subscribed to the System.
(e) Customer Data. "Customer Data" means any of Customer’s information, documents, or electronic files that are provided to Buildicus hereunder from any source.
(f) Documentation. "Documentation" means the online documentation provided at http://buildicus.com, and is incorporated herein by this reference.
(g) Edition. “Edition” means the configuration of the System that has been licensed to the Customer. An Edition defines what Components, features, limits, and/or usage restrictions are placed on the System licensed to the Customer, and includes the particular modules and functionality licensed to the Customer together with associated pricing. The particular Edition of the System licensed to the Customer, including pricing and restrictions, is established at the time this Agreement is entered into, and is found in the Customer’s online Profile. From time to time, new Components or features may be made available to be licensed by the Customer. Any such new Components or features must be licensed under a separate agreement, and may be restricted to specific Editions. A complete list of available Components may be found at http://buildicus.com.
(h) Effective Date. “Effective Date” is the date on which the Customer’s subscription to the licensed Edition of the System starts, which is the beginning of the Term.
(i) Error. "Error" means any reproducible material failure of the System to function in accordance with its Documentation.
(j) Force Majeure Event. “Force Majeure Event” is defined in Section 8(c) below.
(k) Maintenance Windows. “Maintenance Windows” means collectively, standard maintenance and emergency maintenance. Standard maintenance windows will be published in advance on Buildicus’s website at least 72 hours in advance of the start of the standard maintenance window. Emergency maintenance will occur as needed. Buildicus will make reasonable efforts to publish emergency maintenance windows on Buildicus’s website in advance of the emergency maintenance window, but it is possible that advanced notification of an emergency window may not occur.
(l) Nonperforming Party. “Nonperforming Party” is defined in Section 8(c) below.
(m) Performing Party. “Performing Party” is defined in Section 8(c) below.
(n) Profile. “Profile” means Customer’s online Buildicus account information, including without limitation information regarding Customer’s Edition, Components, features (including any Additional Features or Suppliers), limits, restrictions, pricing, contact information, billing sources and account numbers, User names and passwords, and Customer Data sources and access information thereto, all as may be revised from time to time as permitted on the Profile page(s). Customer’s Profile is incorporated herein by this reference.
(o) Service Administrator. "Service Administrator" means the person(s) that Customer designate(s) to purchase on behalf of Customer usage of the Service, authorize Users under the Agreement, create accounts for additional Users and otherwise administer Customer's use of the System.
(p) Service(s). "Service” and "Services” means those functionalities available to Customer through its use of the System.
(q) Site. “Site” means the Buildicus System web site located at http://buildicus.com.
(r) Supplier(s). "Supplier” and "Supplier(s)” means any thirdparty suppliers defined or described in the Documentation or Profile, and as further described in Section 6 below.
(s) Support. "Support" means the ongoing services by Buildicus to support the System as described in Section 3 below.
(t) System. "System" means the software service for which Customer has paid, including any Updates relating thereto that may be provided hereunder or thereunder, and any derivative works of the foregoing. A System is made up of individual Components.
(u) Term. “Term” means the thirty (30) day period commencing on the Effective Date and any renewal thereof, as described in Section 5(a) below.
(v) Update. "Update" means any patch, bug fix, release, version, modification or successor to the System.
(w) User. "User" means a named individual to whom Customer has granted access to use the System on Customer’s behalf, regardless of whether or not the User actually accesses the Software. Users may be Customer's employees, consultants, contractors or agents.
(a) Use Rights. During the Term and subject to the terms of this Agreement, Buildicus hereby grants to Customer a nonexclusive, nontransferable, nonsublicensable right to permit Customer's Users to use the licensed Edition of the System for Customer's business purposes. The use right in the preceding sentence is limited to use by the number of Users for which Customer has paid. Such use rights are nontransferable, except as set forth in Section 8(e) of this Agreement. All rights in and to the System not expressly granted herein are reserved to Buildicus.
(b) License and Use Restrictions. This is a use license, not a transfer of title, to the System and Documentation, and Buildicus retains all ownership thereof. Customer acknowledges that the System and Documentation contain trade secrets of Buildicus or its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Customer shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile the System; (ii) modify, create derivative works based upon, or translate the System; (iii) publish any results of benchmark tests run on the System; (iv) use or permit the System to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the prior express written authorization of Buildicus; (v) disclose, provide, or otherwise make available trade secrets contained within the System and Documentation in any form to any third party without the prior written consent of Buildicus; or (vi) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the System in any form to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder. Customer shall implement reasonable security measures to protect Buildicus trade secrets. You acknowledge and agree that Buildicus shall own all right, title and interest in and to all intellectual property rights (including all derivative works or improvements thereof) in the System and to any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any of Customer's Users relating to the System.
(c) System Administrator; User Access. Customer shall designate one or more System Administrators. System Administrators shall be responsible for managing User access, including adding and subtracting Users. The System Administrator shall ensure that multiple Users do not share a password or user name. Customer acknowledges and agrees that it is prohibited from sharing passwords and/or user names with unauthorized users.
(e) No Sensitive Data; Customer Responsibilities. Customer acknowledges that the System is not intended for use with protected health information under HIPAA, credit card numbers, financial account numbers, or other similarly sensitive personal information, and that Customer assumes all risk arising from use of any such sensitive information with the System, including the risk of any inadvertent disclosure or unauthorized access thereto. Customer is responsible for ensuring that Customer and Customer's Users' use of the System is in compliance with all applicable laws and governmental regulations and Customer acknowledges that Customer assumes all risk arising from any such use that is not compliant with applicable laws and regulations.
(f) Compliance with Intellectual Property Laws. When accessing the Site or using the System, you agree to obey the law and to respect the intellectual property rights of others. Your use of the System and the Site is at all times governed by and subject to laws regarding copyright ownership, patent and trademark rights, and the use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, "Content") in violation of any third party's copyrights, patents, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership, patents, trademarks, and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of thirdparty rights caused by any Content you provide or transmit, or that is provided or transmitted using any of your Users’ user names. The burden of proving that any Content does not violate any laws or thirdparty rights rests solely with you.
(g) Inappropriate Content. You shall not make available any of the following types of Content described in this Section 2(g). You agree not to upload, download, display, perform, transmit, or otherwise distribute any Content that (a) is libelous, defamatory, obscene, pornographic, abusive, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; or (c) advertises or otherwise solicits funds or is a solicitation for goods or services. Buildicus reserves the right to terminate your receipt, transmission, or other distribution of any such Content using the System, and, if applicable, to delete any such Content from its servers. Buildicus intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of this Agreement or of any applicable laws.
(h) Security. Customer is solely responsible for maintaining the security of all user names and passwords granted to it, for the security of its information systems used to access the System, and for its Users’ compliance with the terms of this Agreement. Buildicus will act as though any electronic communications it receives under Customer's user names have been sent by Customer. Customer will immediately notify Buildicus if it becomes aware of any loss or theft or unauthorized use of any of Customer's passwords or user names. Buildicus has the right at any time to terminate or suspend access to any User or to Customer if Buildicus believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the System or Buildicus's network.
(a) Services Generally. Subject to the terms of this Agreement, Buildicus shall use commercially reasonable efforts to make the System available to Customer.
(b) Updates. Buildicus shall deliver Updates to the System that apply to the Customer’s currently licensed Edition at no additional charge. From time to time, new Components or features may be released that are applied selectively to different Editions of the System. Only those Updates that apply to the Customer’s currently licensed Edition will be delivered automatically to the Customer at no additional charge.
(c) Support Options and Procedures. Unless Customer has elected to be responsible for its own support under Section 3(h) below, Buildicus shall provide general support to the Customer as set forth on the Support section of the Buildicus website for the Customer's currently licensed Edition. Different Editions of the System will be entitled to different levels of support. In addition, Buildicus may offer premium support options to Customer at an additional charge. In no event shall Buildicus be required to provide support for any hardware, servers, networks or other components of Customer’s system, nor for any hosted website(s) that are not managed by Buildicus.
(d) Error Correction. Buildicus shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible after receiving notice of an Error during Buildicus's normal business hours. Customer shall provide such access, information, and support as Buildicus may reasonably require in the process of resolving any Error. Buildicus’s obligations under this Section 3(d) are Customer's sole and exclusive remedy for Errors.
(e) Support Exclusions. Buildicus is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by:
(i) the acts, omissions, negligence or willful misconduct of Customer, including any unauthorized modifications of the System or its operating environment;
(ii) any failure or defect of Customer’s or a third party’s hardware, equipment, servers, network, software, facilities, thirdparty applications, or internet connectivity (or other causes outside of Buildicus's firewall);
(iii) Customer’s use of the System other than in accordance with the Documentation; or
(iv) a Force Majeure Event.
(f) Support Fees. Buildicus has the right to bill Customer at its standard services rates for any support issues excluded by Section 3(e) above that have been preapproved in writing (including in an email) by Customer.
(g) Limitation of Remedies. Correction of Errors as described in this Agreement are Customer’s sole and exclusive remedies for any Errors in the System.
(h) Optional Support by Customer. As an alternative to the support provided under Sections 3(c) through 3(e) herein, Buildicus and Customer may enter into a separate support agreement pursuant to which Customer (or a third party designated by Customer) shall be responsible for general System support and all Error correction. Any additional support requested by Customer shall be billed at Buildicus’s current hourly rate as set forth in the Support section of the Buildicus website, but in no event less than $125/hour.
(a) Fees. In return for the products, services and use rights provided by Buildicus to Customer hereunder, Customer shall pay to Buildicus the fees in the amounts set forth in the Customer’s on-line Profile, subject to any pricing changes as described in Section 4(d) below. All dollar amounts refer to U.S. dollars.
(b) Payment Terms. Customer shall pay all recurring charges monthly in advance in accordance with its on-line Profile and the automatic payment method elected by Customer therein. Buildicus also shall invoice Customer for all nonrecurring charges and expenses incurred from time to time. Customer shall pay all Buildicus invoices within 30 days of the invoice date. If Customer is delinquent in payment of any portion of an invoice, or if its automatic payment of monthly fees is not honored by the payor, Buildicus may, in addition to any other remedies it may have, including termination, suspend access to the System and/or provision of all services to Customer. Customer agrees to pay interest on delinquent amounts at the rate of 1½% per month (or, if lower, the maximum amount permitted by law) from the date any such amount is due until paid in full.
(c) Taxes. Customer shall pay or shall reimburse Buildicus for all sales taxes and other taxes, however characterized by the taxing authority, based upon the license fees or other charges under this Agreement or otherwise incurred on account of Customer’s use of the System, except for any taxes based upon Buildicus's net income or gross receipts or for any franchise or excise taxes owed by Buildicus. If Customer is a taxexempt organization, then, upon Buildicus's receipt of proof of such status, Buildicus shall not charge Customer for any taxes from which Customer is exempt.
(d) Pricing Changes. Buildicus reserves the right to increase fees on an annual basis. The Customer will receive notice of changes in pricing at least forty-five (45) days before each anniversary of the Effective Date. Buildicus further reserves the right to increase fees, or alter Customer’s fee structure, at any time, and effective immediately, in the event that Buildicus determines that Customer’s use of the System is materially disproportionate to the number of Components that Customer has licensed within the System.
Term and Termination
(a) Term. The Term of this Agreement commences on the Effective Date hereof and will continue for thirty (30) days thereafter. The initial Term will automatically renew for additional Terms of thirty (30) days each unless either party gives the other party written notice of its intention not to renew at least thirty (30) days in advance of any renewal Term.
(b) Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party:
(i) if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within 10 days of written notice by the other party specifying the amounts owed;
(ii) in the case of Buildicus, immediately upon any breach by Customer of Section 2(b), Section 2(d), Section 2(e), Section 2(f), or Section 2(g) above;
(iii) immediately upon any breach of any confidentiality obligations owed to such party by the other party;
(iv) if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the nonbreaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or
(v) upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement.
(c) Obligations upon Termination. Upon termination of this Agreement:
(i) Buildicus shall immediately terminate access to the System by Customer, subject to Customer’s limited access rights described in Section 5(c)(iii) below;
(ii) Customer shall immediately pay Buildicus any amounts payable or accrued but not yet payable to Buildicus, including any deferred payments or payments originally to be made over time; and
(iii) provided that Customer purchased access rights to an Edition requiring payment of a fee and has paid all amounts owed to Buildicus hereunder, Buildicus shall, upon written request received within 30 days of termination, provide Customer with access to the System for a period of 24 hours for the limited purpose of exporting Customer Data.
ThirdParty Supplier Software Products
Specific third-party Suppliers may be identified in the Documentation or Profile. Buildicus may make software product(s) provided by such thirdparty Suppliers available to Customer at the time this Agreement is entered into, or at a later time, in order to provide additional features (“Additional Features”) to Customer. Such Additional Features may be enabled upon request, but are, in all cases, coterminous with a Customer subscription. That is, these Additional Features are only available with a subscription to the System and are only available during the Term. Additional Features are not available on a stand-alone basis. Some Additional Features are billed on a per use basis. Others are available as a subscription purchase. Because these features are optional and ancillary to the core System, there may be an additional fee or cost. The termination date of this Agreement will constitute termination of any Additional Feature subscription or use, as applicable.
Customer may be required to agree to additional terms and conditions specific to particular third-party Suppliers, as described in the Documentation, and incorporated herein by this reference. If any thirdparty Supplier product(s) are provided to Customer, Customer agrees: (1) to comply with any additional terms and conditions that may be required for the use of such third-party Supplier product(s); (2) not to make any improper or unauthorized copies of the third-party Supplier product(s), or portions thereof, except for reasonable backup purposes; and (3) not to reverse engineer, decompile or disassemble the third-party Supplier product(s), or portions thereof, except to the extent permitted under any relevant laws.
Buildicus may provide directly, or through qualified third parties, corrective and preventative technical support services under the terms of this Agreement. Customer expressly consents to the provision and collection of certain Customer information and data in connection with such services. The personal information Buildicus collects will be used by Buildicus, and its thirdparty Suppliers:
(1) to provide the technical support service(s) or complete the transaction(s) Customer has requested or authorized;
(2) to request additional information on feedback that Customer provides about the product or service that Customer is using;
(3) to provide critical updates and notifications regarding any pre-release software; and/or
(4) to improve the product or service, i.e. fix reported product issues. Customer expressly consents to Buildicus permitting certain third parties and consultants that it retains to perform services on its behalf to access Customer’s information and data solely to perform such services for Customer. The Customer is responsible for providing any required notices and/or obtaining any required consents relating to the collection and use of such data (including any such consent necessary for Buildicus to provide these services). The Customer is responsible for taking the steps necessary to ensure that the Customer’s use of the services complies with applicable laws, regulations, and codes of practice. Customer acknowledges that to the extent permitted by law, Buildicus assumes no responsibility for storage of Customer Data or information.
Service Level Commitments, Disclaimers and Limitations
(a) Service Level Commitments; Credits. Buildicus warrants that the System and all Services provided on the System will be accessible to Customer’s authorized Users 99.5% of the time in any given calendar month, excluding Maintenance Windows. Notwithstanding the foregoing, Buildicus does not warrant the network availability between Customer and the Buildicus hosting servers, as such availability can involve numerous third parties and is beyond the control of Buildicus. Buildicus will not be liable for nor provide any service credits hereunder for any downtime caused in whole or part by a thirdparty data center provider nor for any downtime that Customer experiences as a result of Customer or Customer’s Users’ own network connectivity issues. If Customer experiences a System or Service outage and is unable to access the System or any Service, Customer must immediately contact Buildicus’s help desk, providing all necessary information that may assist Buildicus in determining the cause of the outage. Buildicus will determine in good faith whether the outage was within Buildicus’s reasonable control. If Buildicus determines that a timely reported outage was attributable to Buildicus, then Buildicus will credit Customer 1 day of Service fees for every 2 hours of downtime Customer experienced, up to a maximum of half of that month’s Service fees. This shall be Customer’s sole remedy, and Buildicus’s sole liability, for Buildicus’s failure to provide the availability set forth in this Section 7(a).
(b) Disclaimer of Warranties. EXCEPT FOR THE LIMITED SERVICE LEVEL COMMITMENTS SET FORTH IN SECTION 7(A), THE SYSTEM IS PROVIDED “AS IS”, AND WITHOUT WARRANTY OF ANY KIND. BUILDICUS MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM, THE SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SYSTEM. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH IN THE LIMITED SERVICE LEVEL COMMITMENTS IN SECTION 7(A), BUILDICUS DISCLAIMS ANY WARRANTY THAT THE SYSTEM, THE SERVICES PROVIDED BY BUILDICUS, OR THE OPERATION OF THE SYSTEM ARE OR WILL BE ACCURATE, ERROR FREE OR UNINTERRUPTED. BUILDICUS MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. If a disclaimer of implied warranties is not permitted by law, the duration of any such implied warranty is limited to ninety (90) days from the date the specific Edition was licensed. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so such limitations or exclusions may not apply to Customer. This limited warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction.
(c) Exclusion of Consequential Damages. BUILDICUS HAS NO LIABILITY WITH RESPECT TO THE SYSTEM, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF BUILDICUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) Limitations of Remedies and Liability. BUILDICUS'S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO: (1) IN THE CASE OF CUSTOMER ON A MONTHLY PAYMENT PLAN, ALL FEES PAID TO BUILDICUS BY THE CUSTOMER IN RESPECT OF USER LICENSES FOR THE SYSTEM DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY; OR (2) IN THE CASE OF CUSTOMER ON AN ANNUAL PAYMENT PLAN, ALL FEES PAID TO BUILDICUS BY THE CUSTOMER IN RESPECT OF USER LICENSES FOR THE SYSTEM DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
(a) Notices. Notices regarding this Agreement to Buildicus shall be in writing and sent by first class mail or overnight courier to the address provided at that time on Buildicus's website. Buildicus may give notice by means of posting notice on the System, by electronic mail to Customer's email address on record with Buildicus, or by written communication sent by first class mail or overnight courier to Customer's address on record in Buildicus's account information. All notices shall be deemed to have been given three days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or 12 hours after either sending by email or posting on the System.
(b) Promotional Materials; No Use of BUILDICUS Trademark. Buildicus may include statements, and may use the Customer’s name and logos in its website, commercial advertisements and promotional materials for the sole purpose of indicating that Customer is a user of the System. Customer may not use any of the trademarks of Buildicus, including without limitation the word “BUILDICUS” and the design mark for any purpose whatsoever.
(c) Force Majeure. "Force Majeure Event" means any act or event that (a) prevents a party (the "Nonperforming Party") from performing its obligations or satisfying a condition to the other party’s (the "Performing Party") obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. "Force Majeure Event" does not include economic hardship, changes in market conditions or insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the Performing Party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the Performing Party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this Section 8(c) is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
(d) Severability. Customer acknowledges and agrees that each provision of this Agreement that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk, and is part of the consideration of this Agreement. Invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement.
(e) Assignment. Buildicus may assign any of its rights or obligations under this Agreement at any time; provided, however, that Buildicus shall not assign the rights granted to Customer Data in Section 2(d) except in connection with the sale (whether by merger, asset sale, equity sale or otherwise) of (i) Buildicus, (ii) the System or (iii) a portion of Buildicus or the System that would reasonably require the acquirer of such portion to be assigned such rights to the Customer Data. Customer shall not assign any of its rights under this Agreement, except with the prior written approval of Buildicus, which shall not be unreasonably withheld. The preceding sentence applies to all assignments of rights, except in the event of a voluntary transfer of substantially all assets by Customer to a transferee that executes Buildicus’s form of agreement agreeing to be bound all of the terms and conditions of this Agreement. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section is void.
(f) Governing Law; Venue. The laws of the State of California (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a state or federal court of competent jurisdiction sitting in Fresno County, California, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to: (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court sitting in Fresno County, California; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(g) Mediation. Except in the case of Buildicus seeking equitable relief, as a condition precedent to the commencement of litigation, Buildicus and Customer agree to participate in mandatory non-binding mediation. If any dispute, controversy, or claim arising out of or relating to this Agreement (including any question regarding its existence, enforcement, interpretation or validity), or the rights or obligations of the parties hereunder, is not resolved by mutual agreement, then either party may commence the mediation proceeding by sending a written request for mediation to the other party, as the case may be, which request shall refer to this section and shall set forth the nature of the controversy and the remedies sought. The parties shall work in good faith to select a single mediator. If the parties to the mediation fail to select a mutually acceptable mediator within twenty-one (21) days after the request for mediation is received, then either party may send written notice to the other party terminating the mediation, after which litigation may be commenced.
If a mediator is agreed upon by the parties, the mediation shall promptly take place in Fresno, California, unless the parties otherwise mutually agree. As soon as reasonably practicable after the mediator’s selection, a meeting with respect to the dispute or matter to be resolved shall be conducted by the mediator. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in the costs and fees of the mediator. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, shall be confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may seek equitable relief from a court of competent jurisdiction prior to mediation to preserve the status quo pending the completion of that process.
(h) Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the unsuccessful party shall pay to the prevailing party its reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which the prevailing party may be entitled.
(i) Entire Agreement. This Agreement, and those terms expressly incorporated herein, including without limitation Customer’s online Profile and the Documentation, constitutes the final agreement between the parties, and is the complete and exclusive expression of the parties’ agreement on the matters that are the subject of this Agreement. All other prior and contemporaneous negotiations and agreements between the parties on the matters contained or incorporated in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than any that are expressly stated in this Agreement.
(j) Amendments. The parties may amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
(k) Survival of Certain Provisions. Each party hereto covenants and agrees that the provisions in Sections 1, 2(b), 5(c), 6, 7 and 8, in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.
(l) Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.
(m) Headings Not Controlling. The headings in this Agreement are for reference purposes only and shall not be construed as a part of this Agreement.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date that Customer has subscribed to the System on Buildicus’s website.
Buildicus, Inc., a California corporation
By: Bradford E. Gleason, President