This is the BuildBeam SaaS Services Agreement ("Agreement"), between BuildBeam ("US," "We," or the "Company") and the client specified on the acceptance form ("Client" or "You"). Client has designated an authorized Client administrator(s) (the "Client Administrator(s)") who will act as the contact person for the Company and who has the responsibility to insure the security of Client users ("Authorized User(s)") and all other access to the Services other than Company access. Client has also designated a person for notice purposes as required under this Agreement if different from the Client Administrator. Once you have accepted this Agreement, a confidential password permitting access to Services will be sent to the Client Administrator. The "Services" mean the BuildBeam℠ cloud-based software services as then available.
Client accepts this Agreement per the acceptance link and, for any Term, use of the Services during that Term.
There will be no force or effect to any different or additional terms of any Client purchase order, contract or similar form. All terms in any Client purchase order or other document not signed by Company are expressly rejected.
This Agreement contains, among other provisions, warranty disclaimers, liability limitations and use limitations. The Service is for use in the US only. Client agrees that its agreement to this Agreement as electronically accepted complies with the terms of all applicable electronic document laws and regulations including without limitation that this Agreement is in writing and capable of being retrieved, reviewed, printed and stored other than on the Service.
BuildBeam℠ and the BuildBeam logo are the trademarks of Daft Labs, Inc. BuildBeam is a trade name of Daft Labs, Inc., a Vermont corporation.
ALTHOUGH THE SERVICE OFFERS CERTAIN BOOKKEEPING AND ACCOUNTING-RELATED RECORD-KEEPING AND ORGANIZATIONAL FUNCTIONS, THE SERVICE IS NOT INTENDED TO AND DOES NOT REPLACE PROFESSIONAL ACCOUNTING, ENGINEERING OR OTHER ADVICE.
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Client with Services beginning on the date of acceptance of this Agreement and terminating as otherwise provided in this Agreement. Services will be provided on a month-to-month or annual basis as selected by You (the "Term"), Service fees payable in advance of such Term(s).
Termination - Month to Month. If You are a subscriber on a month-to-month basis, You may terminate Services by giving the Company written notice of termination at least thirty (30) days prior to the date of termination. Notice must be sent to Client Support at: email@example.com. Please note you are responsible for payment of the Service fee for the entire month in which termination occurs if occurring within a calendar month.
Termination – Annual Subscription. If you have subscribed on an annual basis, You may terminate Services by giving Client Support notice of termination at least thirty (30) days’ prior to the expiration of any annual Term at: firstname.lastname@example.org.
In the event of termination by the Company for breach, Client is liable for Service fees to the end of the then-current Term.
Client Support. Client support is available via email at: email@example.com
1.1 Company grants to Client during the Term of this Agreement, and Client accepts, the non-exclusive right and license to permit one or more Client Administrator(s) as designated by Client and Client Authorized Users to access, view and use Company proprietary interfaces, methodologies and Services for the intended purposes of the Services. Client is authorized to permit access to the Services solely for Client’s internal business use and account.
1.2 Client does not have the right to re-license, sub-license or sell rights to, or offer access or use of, the Services, or to transfer or assign rights to third parties to access or use the Services. Client use is restricted to Client Administrator(s) and Client Authorized Users. Client is solely responsible for all access granted to Client Authorized Users and all actions on Client’s account.
1.3 Company may, in its sole discretion and without prior notice, suspend access to the Service by the Client, any Client Administrator(s), Client Authorized Users or unauthorized users of Client’s account Company determines are violating any terms of this Agreement, and terminate this Agreement for breach of this Agreement without prior notice.
1.4 In no event will Client obtain any ownership interest in any Company intellectual property or proprietary information or methodologies by use or otherwise, and Client agrees it will not assert such an ownership interest now or in future. All rights not expressly granted to Client in this Agreement are expressly retained and reserved by and to Company.
1.5 Client will not, directly or indirectly: publish or make copies of Company’s proprietary text, graphics, charts and screens, create derivative works based on same (except to the extent expressly permitted by Company or authorized within the Services); use the Services other than as contemplated by this Agreement; or remove any copyright, patent, trademark, proprietary notices from any print materials generated through the Services. For purposes of this Agreement, "Services" includes attendant Company software, text, graphics, methodologies incorporated in the Services, documentation and associated materials, all of which are the sole and exclusive property of Company.
1.6 Client represents, covenants, and warrants that Client will use the Services only in compliance with this Agreement and all applicable laws and regulations. Client agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of any laws or regulations or otherwise from Client’s use of Services. Although Company has no obligation to monitor Client’s use of the Services other than to provide Client Authorized User access and Client Authorized User ID information, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
1.7 Client will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Client will also be responsible for maintaining the security of the Equipment, Client account information, passwords (including but not limited to administrative and user passwords) and files, and for all uses of and activity on Client’s account or the Equipment, whether with or without Client’s knowledge or consent. Client is solely responsible for obtaining any necessary permissions to access the Services by Client Authorized Users.
1.8 Client will use commercially reasonable efforts to prevent unauthorized access to the Services and promptly inform Company of any known violation of this Agreement.
1.9 Please note that information and materials You import are at Your sole risk and responsibility. Company is not responsible for any errors or failure of the Service to process or schedule information from third party sources imported by You.
2.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Company to enable the provision of the Services ("Client Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
2.2 Client will own all right, title and interest in and to the Client Data. Company will own and retain all right, title and interest in and to (a) the Services and attendant methodologies, text, graphics, software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services and support (whether or not suggested by You), and (c) all intellectual property rights related to any of the foregoing.
2.3 Notwithstanding anything to the contrary, Company will have the right collect and analyze Client Data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, data derived therefrom), and Company will be free (during and after the term) to (i) use such information and data to improve and enhance the Services and for other development, research, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, provided that in no event will personally identifiable information is used for any purpose other than fulfillment of Company obligations to Client under this Agreement. No rights in Client Data are granted to Company except as expressly set forth in this Agreement.
2.4 Company will not modify Client Data except in the event of expiration or termination of this Agreement, on specific Client request or as necessary to fix technical issues that prevent the Service from properly operating and delivering such data to Client.
3.1 Your method of payment will be charged automatically on or before each month if You have chosen a monthly subscription or at acceptance if You have chosen an annual subscription. If Client believes that Company has billed Client incorrectly, Client must contact Company no later than 60 days after payment to receive an adjustment or credit. Inquiries should be directed via email TO COMPANY CUSTOMER SUPPORT AT: firstname.lastname@example.org. PLEASE NOTE THAT MONTHLY OR ANNUAL SERVICE FEES ARE FINAL AND NON-REFUNDABLE OTHER THAN DUE TO A CLEAR BILLING ERROR.
3.2 Unpaid overdue amounts are subject to a late fee of 1.5% per month on any outstanding balance from the date due until paid in full. Client is responsible for all costs of collection, including reasonable attorneys’ fees, collection fees and cost. Notwithstanding any other provision of this Agreement, in the event payment is not received within thirty (30) days of invoice, Company may suspend or terminate Service without prior notice and without liability therefor.
3.3 Client will be responsible for all taxes associated with Services other than U.S. and state taxes based on Company’s net income.
4.1 Upon any termination other than for Client breach (including non-payment), Company will make all Client Data available to Client for electronic retrieval for a period of thirty (30) days following termination. Thereafter Company may, but is not obligated to, delete stored Client Data and retain same only for archival purposes and general internal Company purposes as otherwise permitted in this Agreement, provided that in no event will Company use any personal identifiable information in Client Data for any purpose other than fulfillment of Company obligations under this Agreement.
4.2 All sections of this Agreement which by their nature should survive termination will survive termination, including without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Company will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and will perform the Services in a workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company will use reasonable efforts to provide advance notice to the Client Administrator via e-mail of any Company scheduled Service disruption.
Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, ALL SERVICES ARE PROVIDED "AS IS," "WHERE-IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TITLE AND NON-INFRINGEMENT. CLIENT AGREES THAT COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THESE WARRANTY EXCLUSIONS AND THE LIMITATIONS OF LIABILITY AS FURTHER PROVIDED IN THIS AGREEMENT IN SECTION 8. CLIENT EXPRESSLY ACCEPTS THESE EXCLUSIONS AND LIMITATIONS AND AGREES THEY ARE FAIR AND REASONABLE.
Company will hold Client harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable Client assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service: (i) not supplied by Company, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Company, (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified to cease from such activity or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLIENT CLAIMS, EXCEED THE FEES PAID BY CLIENT TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. "COMPANY" INCLUDES ITS SHAREHOLDERS, OFFICERS, MEMBERS, DIRECTORS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by Client except with Company’s prior written consent in each instance, which consent is in Company’s discretion. This Agreement is binding on Company, its successors and assigns and Client and its permitted successors and assigns.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a subsequent writing signed by both parties.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client neither party does not have any authority of any kind to bind the other party in any respect whatsoever.
All notices under this Agreement will be in writing, delivered via electronic mail and deemed to have been duly given when receipt is electronically confirmed to the Company or to the Client email provided for notice purposes. If notice is to the Company, notice will be to: email@example.com
This Agreement will be governed by the laws of the State of Vermont without regard to its conflict of laws provisions. The parties agree that any dispute that cannot be resolved amicably between the parties will be adjudicated exclusively in the appropriate State court of Vermont or the United States District Court for the District of Vermont. Client agrees not to contest venue as appropriate in Burlington, Vermont. Client expressly consents to the personal and subject matter jurisdiction of such courts for such purposes. Each party waives rights to trial by jury.
Client agrees that Company may include Client's name and logo as a Company customer in Company promotional materials.
Client agrees that Company intellectual property and confidentiality rights are special and unique, and that breach by Client of such rights will result in Company damages inadequately compensated by monetary damages alone. Therefore, in addition to any other remedies available at law or equity, Company will have the right to injunctive relief to prevent a breach or threatened breach of such rights without posting a bond or further proof of irreparable harm. In the event Company is required to enforce such rights, Company will be entitled to an award of attorneys’ fees and costs.
THE TERMS AND CONDITIONS OF PROVISION OF THE SERVICE ARE SUBJECT TO CHANGE BY THE COMPANY ON PRIOR WRITTEN NOTICE. YOU WILL BE DEEMED TO ACCEPT ANY CHANGES BY CONTINUED USE OF THE SERVICE FOLLOWING SUCH NOTICE. NOTHING IN THIS AGREEMENT WILL BE CONSTRUED TO REQUIRE THE COMPANY TO CONTINUE TO PROVIDE THE SERVICES IN ANY THEN-CURRENT FORMAT.