BuildTopia Web-based Construction Management Software

BuildTopia End User License Agreement

The following describes the terms and conditions related to the use of the BuildTopia system. The terms and conditions described herein supersede all legal notices contained on the BuildTopia website. These terms and conditions represent a legal agreement between BuildTopia and the Customer. Acceptance of the terms of this License Agreement is required for all BuildTopia proposals.

By signing a corresponding BuildTopia proposal, or by accessing and using the Service (or any part thereof), both parties agree to abide, and to be legally bound by this Agreement. If the Customer does not accept this Agreement, BuildTopia is unwilling to provide access to or use of the Service.

1. DEFINITIONS USED IN THIS AGREEMENT

For purposes of this Agreement, the following terms shall have the following meanings. Other capitalized terms used in this Agreement shall be as set forth in the applicable section of this Agreement.

1. “Intellectual Property Rights” means collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral rights and similar rights.
2. “Service” means, collectively, the services offered by BuildTopia via the Web Site and, as applicable, via such other Web sites as BuildTopia may make available from time to time. The term “Service” shall be deemed to include the Web Site, but shall not include software made available to users from Third Parties through or in connection with the Web Site.
3. "Software Application” means Third Party computer software used by BuildTopia in or in connection with the Service.
4. “Terms of Use” means the terms of service for the use of the BuildTopia Web Site generally, as such terms may be amended from time to time. Presently the Terms of Use is contained online and accessible through a link at http://www.buildtopia.com
5. “Third Party” means any party other than BuildTopia and Customer.
6. “Web Site” means the web site(s) through which BuildTopia delivers or provides access to the Service.
7. “Privacy Policy” means the BuildTopia Privacy Statement for the use of the BuildTopia Web Site generally, as such terms may be amended from time to time. Presently the BuildTopia Privacy Statement is contained online and accessible through a link at http://www.buildtopia.com.

BuildTopia is an application service provider that hosts, implements, integrates and supports an Internet based service that combines and integrates various facets of the residential construction process into a single service. BuildTopia will provide the Service for a registered user fee or an Active Lot Fee (Product Subscription), as set forth in the payment schedule contained within the signed Proposal attached hereto (“Proposal ”).

Grant of License. Subject to the terms of this Agreement (including payment of applicable fees), BuildTopia: (a) grants to Customer a limited, non-transferable, non-exclusive license, to access and use the Service through the Web Site and Customer’s account, solely to support Customer’s normal course of business; provided, that, Customer may not (i) use the Service in a resale capacity, or (ii) process and/or analyze Third Party data in a commercial service bureau, timesharing, outsourcing, ASP (Application Service Provider), or similar environment; and (b) retains all right, title, and interest in and to the Service, and in any hardware, Software Application(s), content, and other technology, data, information and materials (as applicable) supplied or otherwise made accessible by BuildTopia in connection with the Service.

Agreement Term. This Agreement commences as of the Effective Date set forth in the attached proposal and or activation of the online account, whichever is first, and, subject to the terms of this Agreement (including payment of applicable fees), continues for the initial term of one year (the “Initial Term”). This Agreement shall automatically renew for additional one (1) year terms (each, an "Additional Term") unless either party gives the other party written notice of its intention not to renew sixty days (60) prior to the expiration of such term. (The Initial Term and the Additional Terms collectively constitute the “Term”.)

Termination. After initial term expires, Customer may terminate agreement with 60 days written notice. Further, either party may terminate this Agreement upon written notice to the other party if the other party materially breaches any obligation and fails to cure such breach within thirty (30) days after receiving notice; provided, however, that, (a) for any noncompliance with this Agreement, or the Terms of Use, BuildTopia may terminate this Agreement in a shorter period of time if such termination is necessary for BuildTopia to avoid liability or to prevent a service interruption from the Internet Service Provider(s) that provide Internet access or related services to BuildTopia or (b) for Customer’s failure to timely pay fees due, BuildTopia may immediately terminate this Agreement. Notwithstanding anything to the contrary in this Agreement, either party shall have the right to immediately terminate this Agreement in the event the other party: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under United States Federal or state statute that is not cured within sixty (60) days; (c) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority; or (d) has wound up liquidated, voluntarily or otherwise ceased to conduct its business in the normal course.

Upon termination or expiration of this Agreement, Customer shall immediately pay all amounts due to BuildTopia as of the date of termination or expiration (and all unpaid charges will be deemed to immediately become due), and immediately cease all use of the Service. Except as otherwise expressly provided herein, all Customer’s rights under this Agreement will immediately terminate upon the termination of this Agreement. Any and all provisions, promises and warranties contained herein which by their nature or effect are required or intended to be observed, kept or performed after termination of this Agreement will survive the termination of this Agreement and remain binding upon and for the benefit of the parties hereto.

Payment Terms. Customer agrees to pay BuildTopia subscription fees applicable to Customer’s use of the Service, and all other amounts accrued by Customer in connection with use of the Service, as set forth in the attached signed Proposal (collectively, the “Fees”). Service shall begin at the time the agreements are signed. Customer shall pay BuildTopia the entire amount billed within thirty (30) days of the date of the invoice except for amounts listed in the proposal that are referenced to be due with agreement. Late payments are subject to a late charge, which is the lower of one and one half percent (1.5%) per month or the maximum legal rate. Customer is responsible for the payment of all taxes associated with this Agreement or Customer’s use of the Service (other than taxes based on BuildTopia's net income).

Access to Customer Data. At any time, customer can download their data from the BuildTopia application using the On Demand Reports function within the system. This function allows the customer to query desired data and export in a normalized format to MS Excel. Further, at any time, customer can request a copy of all documents stored in the system for a fee of $250.

Price Increases. Subscription Pricing contained in this proposal is valid for a period of 12 months (Initial Term). After the Initial Term, Subscription Pricing is subject to change but in no event will the customer be subject to price increase greater than 5% in any 12 month period. At any time customer changes subscription level, they will upgrade/downgrade to the current pricing at that time.

Restrictions. Customer will not, and will not permit a Third Party to (a) alter, modify, adapt, or create any derivative works of any part of the Service, including any Software Applications or any copyright, trademark, or other proprietary rights notices of any party; (b) copy, any part of the Service or any of the Software Application(s), except to the minimum extent permitted by applicable United States Copyright laws; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from any part of the Service including any Software Application(s); or (d) license, sell, transfer or lease the Service including any Software Application(s). BuildTopia hereby reserves to itself and its licensors all rights not expressly granted to Customer herein. Customer shall have no rights in or to any part of the Service except as provided in this Agreement. Further, BuildTopia is bound by the Privacy Policy on http://www.buildtopia.com.

Access to Service. BuildTopia shall use commercially reasonable efforts to keep the Service available 99.9% of the time from 5am through 11pm EST every day of the year subject to scheduled downtime communicated to users prior to such scheduled downtime. BuildTopia has a maintenance window from 11PM through 5am EST every day to make regular updates for maintenance purposes. The parties acknowledge that, since the Internet is neither owned nor controlled by any particular entity, BuildTopia can make no guarantee that any given user will be able to access the Service at any given time. There are also no assurances that access and service will be available at all times or be interrupted, and BuildTopia shall not be liable to Customer for failure of accessibility to the Service due to failures of the Internet or for other causes beyond BuildTopia’s reasonable control. However, BuildTopia warrants that it will make all reasonable efforts to correct failures and interruptions stemming from failure of equipment and software that BuildTopia directly controls.

Warranties and Disclaimer. BuildTopia warrants that it has the necessary corporate authority to enter into this Agreement and that it will use commercially reasonable efforts to make the Service available in a professional and workmanlike manner. BuildTopia also warrants that such reasonable efforts shall apply to making corrections to Buildtopia’s program when the software performs in a manner inconsistent with its intended functionality. Customer warrants and represents that: (i) it has obtained all authorization(s), consents and licenses necessary to fully perform this Agreement, and (ii) it will comply with the terms and conditions of this Agreement. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY, BUILDTOPIA PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND BUILDTOPIA SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BUILDTOPIA DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE, VIRUS FREE, OR UNINTERRUPTED OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. BUILDTOPIA MAKES NO WARRANTY REGARDING THE ACCURACY, COMPLETENESS, SEQUENCE, TIMELINESS OR AVAILABILITY OF THE SERVICE OR ANY PART THEREOF, INCLUDING ANY INFORMATION OR OTHER MATERIALS TRANSMITTED BY CUSTOMER OR THIRD PARTIES USING THE SERVICE OR CUSTOMER’S ACCOUNT.

Indemnity. Customer and BuildTopia each agree to indemnify, defend and hold the other party and its affiliates, officers, directors, employees, vendors, licensors, agents and representatives harmless from and against all damages, costs, expenses (including without limitation, reasonable attorneys’ fees and expenses), and liabilities arising from any claims of third parties arising from or related to: (a) any breach of this Agreement by either party, or (b) any activities on or through Customer’s account, other than for unauthorized use due to the gross negligence or willful misconduct of BuildTopia.

IN NO EVENT SHALL BUILDTOPIA OR ITS OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, VENDORS OR AGENTS BE LIABLE TO CUSTOMER or to any third party FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT or the service, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BUILDTOPIA OR ITS OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, VENDORS OR AGENTS BE LIABLE TO CUSTOMER IN ANY AMOUNT WHICH SHALL EXCEED THE GREATER OF (A) THE AMOUNT OF FEES PAID BY CUSTOMER TO BUILDTOPIA hereunder DURING THE Six (6) MONTHS PRIOR TO THE EARLIEST DATE ON WHICH the ACTION GIVING RISE TO LIABILITY AROSE, OR (B) ONE THOUSAND DOLLARS ($1,000). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT, MAY BE BROUGHT AGAINST BUILDTOPIA MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply. In such jurisdictions, to the extent any portion of this Section is adjudicated to be unenforceable under local law, this Section shall be deemed modified to be consistent with and enforceable under such local law.

Limitation of Liability. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. IN NO EVENT SHALL BUILDTOPIA HAVE ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH: (X) ANY INFORMATION, DATA, SOFTWARE OR OTHER MATERIALS OF CUSTOMER OR ANY THIRD PARTY OR THAT ARE TRANSMITTED BY CUSTOMER OR ANY THIRD PARTY USING THE SERVICE. OR (Y) THE ACCURACY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE SERVICE OR ANY PART THEREOF. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER IS FULLY RESPONSIBLE FOR USE OF ITS OWN ACCOUNT INCLUDING ITS POSTINGS AND OTHER TRANSMISSIONS VIA THE SERVICE; BUILDTOPIA ASSUMES NO LIABILITY AND SHALL HAVE NO LIABILITY FOR CUSTOMER’S OR ANY THIRD PARTY’S POSTINGS OR OTHER TRANSMISSIONS VIA THE SERVICE WHETHER THROUGH CUSTOMER’S ACCOUNT OR OTHERWISE, OR FOR ANY DAMAGES CUSTOMER OR ANY THIRD PARTY MAY SUFFER FROM THE DOWNLOADING, USE OR RELIANCE ON ANY MATERIALS ORIGINATING WITH CUSTOMER OR ANY THIRD PARTY. BUILDTOPIA DISCLAIMS ALL LIABILITY ARISING OUT OF THE USE OR ACQUISITION OF ANY SOFTWARE MADE AVAILABLE TO CUSTOMER THROUGH OR IN CONNECTION WITH THE WEBSITE.

Confidential Information. During the course of this Agreement, Customer and BuildTopia acknowledge and agree that they may be given access to data, services, and information of BuildTopia and Customer, their vendors, and licensors that is of a proprietary, confidential or trade secret nature, including but not limited to, the Service and any Software Application(s) or documentation accessed or provided via the Service for use on or in connection with the Service, and other information that relates to the party’s past, present and future research, development, business and technical information, marketing plans, research, designs, plans, methods, techniques, processes and know-how, whether tangible or intangible and whether or not stored, compiled or memorialized physically, electronically, graphically or in writing (the “Confidential Information”). BuildTopia and Customer shall hold the Confidential Information in confidence, and shall not disclose the Confidential Information to any third party except as authorized herein or otherwise in writing by the parties, and shall use it for the sole purpose of performing this Agreement or using the Service as authorized by BuildTopia and Customer. The term “Confidential Information” shall not include any information which: (a) is in the public domain at the time of disclosure or enters the public domain following disclosure through no fault of the receiving party, (b) BuildTopia or Customer can demonstrate as already in its possession prior to disclosure hereunder or is subsequently disclosed to the other party with no obligation of confidentiality by a third party having the right to disclose it, or (c) is independently developed by Customer or BuildTopia without reference to the Confidential Information. BuildTopia and Customer acknowledge and agree (i) that the obligations in this Section with regard to the Confidential Information which constitutes a trade secrets under applicable law shall remain in effect for as long as such information remains a trade secret under applicable law, and (ii) that the obligations with regard to all other Confidential Information shall remain in effect for two (2) years after such Confidential Information is initially disclosed to BuildTopia or the Customer.

Miscellaneous. BuildTopia may assign this Agreement in their sole discretion. All required communications to BuildTopia shall be in writing, in English, and shall be addressed to the parties at their email addresses in the contact us section of the BuildTopia Website at http://www.buildtopia.com. All communications shall be deemed given when hand delivered; or mailed, by registered mail or overnight courier, upon date of mailing; or if by electronic mail or facsimile, when received (with verification of transmission sent properly to the receiving party along with a hard copy of the communication). BuildTopia shall not be liable for delays or failure to perform if due to any cause or conditions beyond BuildTopia’s reasonable control, including, but not limited to, delays or failures due to acts of God, acts of civil or military authority, fire, flood, strikes, wars, or shortage of power. Any delay by a party in exercising its rights hereunder shall not constitute a waiver of its rights or its entitlement to enforce any provision of this Agreement. If any provision of this Agreement is for any reason held unenforceable or invalid, then this Agreement shall be construed as if such provision were not contained herein. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Maryland, without giving effect to its conflict of law rules. Subject to the dispute resolution provisions contained herein, exclusive venue for any action permitted herein shall be solely in an appropriate federal or state court located in Montgomery County, Maryland. The parties irrevocably consent to such jurisdiction and venue and waive all defenses inconsistent herewith. The parties’ relationship is that of independent contractors, and in no event shall the employees and/or agents of either party be deemed the employees and/or agents of the other. Nothing herein shall be deemed to create a partnership, joint-venture, or franchise or-franchisee relationship between the parties. The parties acknowledge and agree that the remedies at law for breach of any Term in this Agreement may be inadequate and that either party shall be entitled to injunctive relief for any breach of this Agreement in addition to other available remedies.

Dispute Resolution. Any controversy or claim arising out of, or relating to this Agreement or its breach, or otherwise relating to this Agreement or the Service (with the exception of actions initiated by third parties, or injunctive or other relief BuildTopia may seek for any violation of BuildTopia’s or its licensors’ or suppliers’ proprietary rights, including but not limited to Intellectual Property Rights, or for breach of Customer’s confidentiality obligations under this Agreement), shall be settled by arbitration in accordance with the then-current rules of the American Arbitration Association. Before entering into arbitration, the parties shall each appoint an arbitrator, and these two arbitrators shall select a third arbitrator to be a member of the panel. Should the two arbitrators not be able to agree on a choice of the third, then the American Arbitration Association shall make the appointment of a person who is neutral to the parties. None of the arbitrators shall be an officer, employee or family member of the parties to this Agreement. Such arbitrators shall be experts in the computer/information technology field, at least one of whom shall be an attorney. The location of arbitration shall be in Montgomery County, Maryland, USA. The arbitrator will issue a reasoned award. The parties may take discovery by any means allowed by the Federal Rules of Evidence then in effect. The arbitrator may exclude from evidence any evidence not previously shared with the other side. The cost of any arbitration or litigation will be borne equally by the parties pending the court’s and/or arbitrator's award(s). The prevailing party in any arbitration proceeding or litigation hereunder will be entitled, in addition to any other relief granted to it, to recover reasonable attorney's fees and the costs incurred in connection with the arbitration or litigation.

Order of Precedence. This agreement governs your license to use the BuildTopia Service. To the extent that any provision of this agreement conflicts with any provision of other agreements with BuildTopia (i.e. Terms of Use on the BuildTopia Website and Online End User Agreement accepted during account signup), terms of this agreement, shall, as to the subject matter referenced in this agreement, take precedence over the conflicting term(s) of any other agreement.