ON CENTER SOFTWARE WITH TAKEOFF BOOSTTM
Electronic End User License Agreement – Effective January 31, 2023
NOTICE TO USER: This End User License Agreement (“Agreement”) is a legal agreement. Please read the Agreement carefully before completing the installation process and using the Software. It provides a license to use the Software and contains warranty information and liability disclaimers. BY INSTALLING THE SOFTWARE, YOU ARE AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. You (“Licensee”) agree that this Agreement is like any written negotiated agreement signed by You. The Agreement is enforceable against You and any legal entity that obtains the Software and on whose behalf it is used. If You do not agree with the terms of this Agreement, do not install or use the Software. The terms of this Agreement also apply to any Software upgrades, patches, modified versions, updates, additions, copies of the Software licensed to You by ConstructConnect or third parties, and support services for the Software, unless other terms accompany those items. If so, those terms apply.
“Aggregate Content” means aggregate and/or anonymize Licensee Content and/or Licensee Data with respect to Licensee or its Authorized Users.
“AI/ML” means artificial intelligence / machine learning algorithms.
“Ancillary Services” may include but not be limited to the application of proprietary AI/ML algorithms to construction blueprints, technical designs and drawings, specifications, building plans or other similar technical information and returning relevant line coordinates and recognized objects to provide length, area and counts to the Licensee.
“Authorized User” means any individual who is authorized by virtue of such individual’s relationship to, or permissions from, Licensee, to access and receive Licensee Content/Licensee Data and use the Software on Licensee’s behalf pursuant to Licensee’s rights under this Agreement.
“Licensee” means the entity that has purchased a license or licenses to use the Software.
“Licensee Content” means any content, including construction data, uploaded to the Software, or provided by the Software to the Licensee in connection with the Services.
“Licensee Data” means personally identifiable information provided by Licensee to ConstructConnect regarding natural persons.
“Physical Server” means a computing device running an operating system on which other software or utilities are installed. The operating system runs directly on the hardware of the device, not in an emulated or virtualized environment. A Virtual Server is not a Physical Server.
“Reseller” means an authorized reseller of the Software in a Territory.
“Software” means (a) all of the information with which this Agreement is provided, including but not limited to: (i) all software files, Ancillary Services (if included in the Order Form or otherwise provided to Licensee), and other computer files or information; (ii) sample and stock photographs, images, sounds, clip art and other artistic works bundled with Software; (iii) and (iv) related explanatory online screen-share demonstration materials, marketing collateral and other materials in written or electronic form (“Documentation”), and (b) any modified versions and copies of, upgrades, patches, updates, and additions to such information, provided to You by ConstructConnect or third parties on behalf of ConstructConnect at any time, to the extent not provided under separate terms (collectively, “Updates”).
“Territory” means a designated territory in which a Reseller has exclusive rights to distribute the Software.
“Updates” means those subsequent releases of the Software which are generally made available to compliant licensees of the Software who purchase them. Updates shall not include: (i) any releases, enhancements, functionality, services, or products that On Center licenses separately or charges for separately; or (ii) any installation, configuration, or other services. Updates are delivered only if and when generally commercially available.
“User” means any entity that uses the Software.
“Virtual Server” means software implementation of a computing device that executes programs like a physical machine but is not directly running as the operating system for the physical machine on which the software implementation is running (also referred to as an emulator or guest operating system).
“You” means any end user of the Software and includes Licensee and its Authorized Users.
“Your” means of or relating to You.
2. License Grants
Subject to the terms and conditions set forth in this Agreement, ConstructConnect grants You a non-exclusive, non-transferable, limited license to install and use the Software on compatible devices. You may install and use the Software as permitted by the license type purchased and as described in this Agreement. The license type purchased is specified either in the product or on the product receipt or invoice.
3. License Types
3.1 Single Seat License: Under the terms of a Single Seat License, the Software is licensed for use by one user on one device at a time. This license type may also be referred to as a “Local” License. The Single Seat License permits You to install the Software on more than one computer system, e.g., a desktop computer and a laptop computer normally used by the same person at different times, provided that there is no possibility that the Software will be used on more than one computer system simultaneously; any such simultaneous use requires a separate license for each computer system.
3.2 Trial License: A Trial License may be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version of the Software may have limited features and may cease operating after a predetermined amount of time or number of uses based on a metering mechanism within the Trial License as determined solely by ConstructConnect.
3.3 Academic License: Under the terms of an Academic License, the Software may only be used by a student or a faculty/staff member for educational purposes while actively studying or teaching at an educational institution and for no other purpose. The Academic Version of the Software may have limited features and will cease operating after a predetermined amount of time. An Academic License may not be shared or used at the same time on different devices. Academic Licenses may not be used for commercial, professional, or for-profit purposes.
3.4 Subscription License: Under the terms of a Subscription License You may use one copy of the Software for the specified term of the Subscription License. The term of the Subscription License begins on a date You choose for the start of Your subscription and continues for the term specified when You subscribe to the product. If the term is not specified when You subscribe to the product, then the term is thirty (30) days. The Subscription License will terminate if the Licensee fails to comply with any term or condition in this Agreement, including failure to pay associated fees when due. In case of termination, Licensee will not be entitled to a refund of amount paid for the license to use the Software, or any other amounts for any reason. Software with a Subscription License may contain a device that limits Software usage in accordance with the license.
3.5 Freeware License: Under the terms of a Freeware License, one individual is licensed to use the Software on one computer or computing device at a time. The Freeware Version of the Software has limited features. The Freeware user may use the Freeware License for evaluation or production purposes. The Software licensed under the Freeware License is not eligible for product support.
4. Licensing Requirements and Restrictions
4.1 Virtualization Technology: The Software may be installed within a virtual (or otherwise emulated) hardware system so long as the use of the Software meets the terms of the license type. Floating Seat Licenses are the only license types that permit virtual system uses. Virtualization technology may not be used to circumvent other licensing terms and restrictions.
4.2 Non-Human Devices: Non-human devices that utilize the Software without interaction are counted as users. Each device that runs the Software must be properly licensed to use the Software with one of the license types described herein. Examples of non-human devices include, but are not limited to, virtual PCs, build servers, unattended PCs for batch jobs, etc.
- Backups and Prior Versions: Depending on the Software and License Type You have acquired, it may be possible to:
- Make two archival (backup) copies of the Software. However, the use of such backup copies must be in complete compliance with the terms of this Agreement.
- Maintain prior versions of the Software on the same computer with a properly licensed current version of Software. A prior version may be used by a properly licensed user in place of the current version of the software. The prior version is not an additional license of the Software; it may be used only as a substitute for the current version.
4.4 Audit: You agree that ConstructConnect may audit Your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event such audit reveals any use of the Software by You other than in full compliance with the terms of this Agreement, You shall reimburse ConstructConnect for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such non-compliance.
4.5 The Software is licensed as a single product. The Software and its constituent parts may not be reverse engineered, decompiled, disassembled or separated for use on more than one computer, nor placed for distribution, sale, or resale as individual creations by You. You may not alter, merge, adapt or translate the Software, or otherwise reduce the Software to a human-perceivable form. You may not modify the Software or create derivative works based upon the Software.
4.6 The provision of source code, if included with the Software, does not constitute transfer of any legal rights to such code, and resale or distribution of all or any portion of all source code and intellectual property will be prosecuted to the fullest extent of all applicable local, federal and international laws. All Software and other files remain ConstructConnect’s exclusive property. If source code or modifiable files are provided, regardless of any modifications that You make, You may not redistribute them unless ConstructConnect has expressly designated these as re-distributable.
4.7 Other than as expressly set forth in Sections 2, 3, and 4, You may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.
4.8 You may not rent, lease, sublicense, lend, sell, assign or transfer the Software, including any documentation. Unless otherwise expressly authorized in a separate written agreement between, and executed by, You and ConstructConnect, You may not use, or permit the use of, the Software on a timeshare or service bureau basis. In addition, unless otherwise expressly authorized in a separate written agreement between, and executed by You and ConstructConnect, You may not host, on a subscription basis or otherwise, the Software to permit a third party to use the Software for any reason.
4.9 Unless otherwise provided herein, You shall not (A) in the aggregate, install or use more than one copy of the Trial Version of the Software, (B) download the Trial Version of the Software under more than one username, (C) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (D) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without ConstructConnect ‘s prior written consent, (E) use the Trial Version for any application deployment or ultimate production purpose, or (F) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to the Software; provided, however, notwithstanding the foregoing, You are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.
4.10 You may not use the Software to create any product that directly or indirectly competes with the Software.
4.11 You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder.
4.12 If the Software purchased is offered with an Enterprise License Manager and in the event that You are installing the Software on a Physical Server, You will be required to purchase and install the latest version of Enterprise License Manager – Physical Edition to use the Software, and if You are installing the Software on a Virtual Server, You will be required to purchase the latest version of Enterprise License Manager – Virtual Edition to use the Software. In the event You install the Software on a Physical Server or Virtual Server and thereafter want to install the Software on the other type of server, You will be required to purchase the other version of Enterprise License Manager in order to use the Software on such other server. Enterprise License Manager allows ConstructConnect to track the use of the Software on the applicable Physical Server or Virtual Server, and Your installation of the Software will constitute Your agreement that ConstructConnect may utilize Enterprise License Manager for such purposes.
4.13 If the Software includes, or, in connection with the acquisition of the Software You receive, two or more operating environment versions of the Software (e.g. Macintosh® and Windows®), two or more language translation versions of the Software, the same Software on two or more media, and/or You otherwise receive two or more copies of the Software, You may use only one copy of one version of the Software.
4.14 If the Software was purchased with a Floating Seat License, You may not permit the number of individuals simultaneously logged in to the Software to exceed such number of floating seats permitted by the license to the Software purchased by You.
4.15 ConstructConnect may adopt from time to time such mechanical or electronic methods it deems necessary or appropriate to control unauthorized use or distribution of the Software. Such methods may require that the Software be used only with a protection device or code provided to You by ConstructConnect. If a hardware device is lost, it may only be replaced for the cost of a new license. Damaged hardware devices may be replaced after the damaged device has been returned to ConstructConnect.
4.16 At the sole discretion of ConstructConnect, certain Ancillary Services or features may from time to time be made available to You for use with the Software. Notwithstanding the foregoing, at any time and at the sole discretion of ConstructConnect (a) any or all of such Ancillary Services may be modified or discontinued and/or (b) the availability or continued availability of such Ancillary Services may require the payment by You of a separate service fee in an amount determined by ConstructConnect in its sole discretion. Any such service fees will be in addition to Your License fees and maintenance fees and/or other fees or amounts paid to or charged by ConstructConnect. In no event will any Ancillary Services be available to You (with or without payment of an additional service fee) if You do not participate in the ConstructConnect maintenance program or if You are not current on all required payments to ConstructConnect.
- Fees. Licensee is subject to and agrees to pay the fees set forth on the Site or as provided by the applicable Reseller in the Territory in which the Software license or subscription is purchased.
- For Licenses purchased on a subscription basis, subscription fees are billed on a monthly basis and are collected automatically by debiting the credit card that Licensee provides to ConstructConnect or Reseller (as applicable).
- ConstructConnect, and each Reseller (as applicable), reserves the right to change the Fees at any time. Fees applicable to Licensee’s current License(s), subscriptions, and/or support packages at the time of a change in the Fees will continue, through the end of the term of such License(s), subscriptions, and/or support packages.
- Licensee may purchase annual Updates and Support Services (as defined herein) for the fees set forth on the Site or as provided by the applicable Reseller in the Territory in which the License is purchased.
- Taxes. Payments made by You for the use of the Software pursuant to this Agreement do not include any taxes or duties payable in respect of the services provided hereunder in the jurisdiction where the payment is either made or received. Any such taxes are Your sole responsibility. To the extent that any such taxes or duties are payable or paid by ConstructConnect or Reseller (as applicable), You agree to indemnify and pay to PlanSwift promptly upon demand the amount of such taxes or duties, and any penalties, interest, costs, and damages related thereto, in addition to any fees owed for the use of the Software pursuant to this Agreement. ConstructConnect shall have the right to add such amounts to any invoice issued to You. If You have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, Licensee may provide ConstructConnect or Reseller (as applicable) with any such exemption information. Upon receipt of such exemption information, ConstructConnect or Reseller (as applicable) will use reasonable efforts to provide such invoicing documents as may enable You to obtain from any relevant revenue authority a refund or credit for the amount so paid if such a refund or credit is available.
- Payments. If the Licensee is making payments in accordance with a payment plan and fails to pay a fee when due, the License will terminate and can be deactivated. In case of termination, Licensee will not be entitled to a refund of the amount paid for the license to use the Software, or any other amounts for any reason. Software offered with a payment plan may contain a device that limits Software usage in accordance with the license.
4.20 Circumvention: Licensee may not utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by ConstructConnect in connection with the Software, or use the Software together with any authorization code, serial number, or other copy-protection device not supplied by ConstructConnect directly or through an authorized distributor. In the case of network versions, the Licensee may not utilize any equipment, device, software, or other means designed to circumvent or remove the ConstructConnect Enterprise License Manager (if any). The Licensee may not utilize any equipment, device, software, or other means designed to circumvent or remove any usage restrictions, or to enable functionality disabled by ConstructConnect.
4.21 If the Software is pre-commercial release or beta software (“Pre-release Software”), then this section applies. The Pre- release Software is a pre-release version, does not represent final product from ConstructConnect, and may contain bugs, errors, and other problems that could cause system or other failures and data loss. ConstructConnect may never commercially release the Pre-release Software. You will promptly return or destroy all copies of Pre-release Software upon the earlier of ConstructConnect’s request or upon ConstructConnect’s commercial release of such Software. Use of Pre-release Software is at Your own risk.
5. Upgrades and Bundles
If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to You on a license exchange basis. You agree by Your installation and use of such copy of the Software to voluntarily terminate Your earlier Agreement.
6. Support and Maintenance Services
6.1 ConstructConnect may provide You with maintenance services related to the Software subject to an additional charge. Use of any such support services is governed by ConstructConnect policies and programs which may change from time to time.
6.2 As part of these maintenance services, ConstructConnect may make available bug lists, planned feature lists, and other supplemental informational materials. ConstructConnect makes no warranty of any kind for these materials and assumes no liability whatsoever for damages resulting from any use of these materials. Furthermore, You may not use any materials provided in this way to support any claim made against ConstructConnect.
6.3 Any supplemental software code or related materials that ConstructConnect provides to You as part of the maintenance services, in periodic updates to the Software or otherwise, is to be considered part of the Software and is subject to the terms and conditions of this Agreement.
6.4 With respect to any technical information You provide to ConstructConnect as part of the maintenance services, ConstructConnect may use such information for its business purposes without restriction, including for product support and development.
6.5 ConstructConnect’s obligation to provide maintenance and or other services for previous versions may be terminated upon a new release.
6.6 If the Software You purchased utilizes a ConstructConnect Takeoff Auto-Naming feature, You authorize ConstructConnect Software to access their image data exclusively for purpose of analysis.
7. Software Activation and Updates
7.1 Software Activation and Deactivation: The Software may use Your internal network and Internet connection for the purpose of transmitting license-related data at the time of installation, registration or update to an ConstructConnect -operated license server and periodically validating the authenticity of the license-related data in order to improve customer service and to protect ConstructConnect against unlicensed or illegal use of the Software. Activation is based on the exchange of license related data between Your computer and a ConstructConnect -operated license server. You agree that ConstructConnect may use these measures and You agree to follow any applicable requirements.
7.2 Update Notification Service: ConstructConnect may provide an update notification service with the Software You purchased. An update notification service may use Your internal network and Internet connection for the purpose of transmitting license-related data to a ConstructConnect -operated update notification server at appropriate intervals and determine if there is any update available for the Software and notify You of its availability.
7.3 Software Data. ConstructConnect collects non-personally identifiable (or anonymous) information for purposes of improving our products and services (see Section 14), providing services to You, facilitating the provision of software updates and product support as well as communicating with You. The non-personally identifiable information that ConstructConnect collects includes technical and related information that identifies Your computer (including the Internet Protocol Address) and operating system, as well as information about Your Software usage and other user navigational information. Further to Your agreeing to be bound by the Terms herein, you will be asked to “Opt-in” to feature analytics gathering during the Software installation process and operation of the Software. By Opting-In, You agree any information You share through Your use of the Software (including, without limitation, personal information) is available for ConstructConnect’s and/or any Ancillary Service providers’ use in gathering information on which features you are using in the Software and will inform ConstructConnect (and/or any Ancillary Service providers)’ on how best to improve user experience.
7.3.1 You represent and warrant that all information submitted by You through the Software is accurate and complete, and that You have taken reasonable steps to ensure the accuracy and completeness of such information. You agree to indemnify, defend, and hold harmless ConstructConnect, its officers, directors, employees, agents, shareholders, representatives, suppliers and content and service providers from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from the information submitted by You through the Software, any violation of this Agreement or any activity related to the use of the Software by You or anyone accessing this Software from Your internet account. You represent and warrant that any information that You provide to the Software will not (a) infringe or violate the rights of any third party; or (b) be deceptive, defamatory, obscene, or unlawful. You acknowledge that any use of the Software by You contrary to, or in violation of the representations and warranties by You in this section constitutes unauthorized and improper use of the Services.
8. Intellectual Property
8.1 The foregoing grants of rights give You a limited license to use the Software. Except as expressly provided in this Agreement, ConstructConnect and its applicable suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications You may develop), and all copies thereof. All rights not specifically granted in this Agreement, including federal and international copyrights, patents, trademarks and trade secrets are reserved by ConstructConnect and its applicable suppliers.
8.2 You may not copy the Software, including the documentation, except as set forth in this Agreement. Any copies that You are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software, including the Documentation.
8.3 Trademarks shall be used in accordance with accepted trademark practices, including identification of trademark owner’s name. Trademarks only can be used to identify printed output produced by the Software. Such use of any trademark does not give You any rights of ownership in that trademark.
8.4 If the licensed right of use for the Software is purchased by You with an intent to reverse engineer, decompile, or illegally transfer any intellectual property or trade secrets, including any exposed methods or source code where provided, no right of use shall exist, and any products created as a result shall be judged illegal by definition of all applicable law. Any sale or resale of intellectual property or created derivatives so obtained will be prosecuted to the fullest extent of all local, federal and international law.
9. Limited Warranty and Disclaimer
9.1 THE SOFTWARE AND ANY RELATED SERVICES OR CONTENT ACCESSIBLE THROUGH OR IN CONNECTION WITH THE SOFTWARE ARE PROVIDED “AS IS”, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED REGARDING THE SOFTWARE, INCLUDING DOCUMENTATION AND RELATED MATERIALS, AND ANY SUCH SERVICES AND CONTENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES, EXPRESS OR IMPLIED, AS TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, QUALITY OR SECURITY. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR ANY RELATED SERVICES OR CONTENT IS FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS, NOR DOES LICENSOR WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT THROUGH THE SOFTWARE.
9.2 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS DEALERS, DISTRIBUTORS, RESELLERS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
9.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
10. Limitation of Liability and Damages
10.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR, ITS OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES NOR ANYONE ELSE INVOLVED IN THE DEVELOPMENT, MANUFACTURE OR DISTRIBUTION OF THE SOFTWARE BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR PERSONAL INJURY, PERSONAL PROPERTY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF TEXT OR DATA STORED IN OR USED WITH THE SOFTWARE AND/OR ANY RELATED SERVICES OR CONTENT ACCESSIBLE THROUGH OR IN CONNECTION WITH THE SOFTWARE, INCLUDING THE COST OF RECOVERING OR REPRODUCING THE TEXT OR DATA OR ANY OTHER PECUNIARY LOSS ARISING FROM OR OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, ANY RELATED SERVICES OR CONTENT ACCESSIBLE THROUGH OR IN CONNECTION WITH THE SOFTWARE AND/OR OTHERWISE. THIS LIABILITY LIMITATION APPLIES EVEN IF YOU OR ANYONE ELSE HAS ADVISED LICENSOR OR ANY OF ITS AUTHORIZED USERS OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY SUCH DAMAGE IS CAUSED BY, ARISES OUT OF OR RESULTS FROM THE ORDINARY, STRICT, SOLE OR CONTRIBUTORY NEGLIGENCE OF LICENSOR, ITS EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES. SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
10.2 LICENSOR’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE LICENSE AT ISSUE TO LICENSOR OR RESELLER (AS APPLICABLE) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE TIME THAT SUCH CLAIM AROSE.
10.3 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
10.4 YOUR RESPONSIBILITY TO PRESERVE AND PROTECT COMPUTER DATA, SOFTWARE, AND OTHER ELECTRONIC FILES: YOU UNDERSTAND AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO BACK UP AND PROTECT ALL DATA, SOFTWARE, INFORMATION AND OTHER FILES STORED IN ANY MANNER ON YOUR COMPUTER, PERIPHERALS, SMARTPHONE OR OTHER APPLICABLE HARDWARE PRIOR TO A SERVICE APPOINTMENT WITH A SERVICE TECHNICIAN. IF OUR SERVICE TECHNICIANS WORK WITH YOU ON ANY PASSWORD OR OTHER ACCESS ISSUES (IN CONNECTION WITH SUPPORT SERVICES OR BACKUP AND GO), WE STRONGLY RECOMMEND THAT YOU RESET SUCH PASSWORDS(S) OR ACCESS FEATURE(S) IMMEDIATELY. LICENSOR AND ITS THIRD-PARTY SERVICE PROVIDERS SHALL NOT BE RESPONSIBLE AT ANY TIME FOR ANY SECURITY, LOSS, ALTERATION, OR CORRUPTION OF ANY OF YOUR SOFTWARE, SYSTEMS, DATA, OR FILES. YOU ACKNOWLEDGE THAT THE INTERNET IS NOT A SECURE NETWORK AND THAT THIRD PARTIES MAY BE ABLE TO INTERCEPT, ACCESS, USE, OR CORRUPT THE INFORMATION YOU TRANSMIT OR RECEIVE OVER THE INTERNET. YOU ALSO ACKNOWLEDGE THAT LICENSOR CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT DATA, SOFTWARE, OR OTHER ELECTRONIC FILES THAT MAY BE PROVIDED, SUGGESTED, ACCESSED OR OTHERWISE AVAILABLE FOR DOWNLOAD IN CONNECTION WITH THE SERVICE WILL BE FREE OF DEFECTS, INFECTION OR VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING, MALICIOUS OR DESTRUCTIVE PROPERTIES.
10.5 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT.
11. Basis of Bargain
The Limited Warranty and Disclaimer and Limitation of Liability and Damages set forth above are fundamental elements of the basis of the agreement between ConstructConnect and Reseller (as applicable) and You. ConstructConnect would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Limitation of Liability and Damages inure to the benefit of ConstructConnect ‘s licensors and Resellers.
12. Notice to S. Government End Users
The Software and Documentation are “commercial computer software” or “commercial computer software documentation” as those terms are used in 48 CFR 12.212. Unless otherwise agreed, use, duplication or disclosure of such software and documentation by U.S. Government civilian agencies is subject to the restrictions set forth in 48 CFR 52.227-14 (ALT III) and 48 CFR 52.227-19, and use, duplication or disclosure by DoD is subject to the restrictions set forth in 48 CFR 227.7202- 1(a) and 48 CFR227.7202-3(a) or, if applicable, 48 CFR252.227-7013(c)(1)(ii) (Oct. 1988). ConstructConnect, Inc., 3825 Edwards Road, Suite 800, Cincinnati, Ohio 45209. The Software is unpublished-rights reserved under the copyright laws of the United States.
This Agreement may be terminated by ConstructConnect immediately and without notice if You fail to comply with any term or condition of the Agreement. Upon such termination You must immediately destroy all complete and partial copies of the Software, including related documentation and all backup copies.
14.1 Licensee Content. ConstructConnect and its subcontractors will use Licensee Content in order to provide and enhance the Software. The Parties acknowledge and agree that the Licensee is at all times the data controller and ConstructConnect and its subcontractors are a data processor (hereinafter collectively referred to as Data Processors).
14.2 Licensee Data. Data Processors may process Licensee Data as needed to provide Ancillary Services. Licensee represents and warrants that Licensee shall only provide to Data Processors Licensee Data necessary to enable the Authorized User to enjoy the benefits of this Agreement. Licensee represents and warrants that Licensee is entitled to transfer relevant Licensee Data to Data Processors so that ConstructConnect may lawfully use, process, and transfer the Licensee Data in accordance with this Agreement on Licensee’s behalf and Licensee shall ensure the same. Licensee shall ensure that the relevant third parties, including data subjects, have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation. Licensee acknowledges that ConstructConnect is reliant on Licensee for direction as to the extent to which Data Processors is entitled to use and process the Licensee Data. Data Processors shall process the Licensee Data only in accordance with the terms of this Agreement and any written instructions given by Licensee. Licensee acknowledges and agrees that the Licensee Data may be shared with third parties as necessary to provide and enhance the Ancillary Services. Data Processors will not be liable for any claim brought by Licensee arising from any action or omission by ConstructConnect, to the extent that such action or omission resulted from Licensee’s instructions.
14.3 Aggregate Content and Licensee Content Usage and Ownership. Licensee hereby grants ConstructConnect a non-exclusive, perpetual, worldwide, royalty-free license to use and copy the Aggregate Content and Licensee Content for the purpose of providing the Ancillary Services. Licensee acknowledges that Data Processors shall be the owner of all Aggregated Content and may use the Aggregated Content for any business purpose, including product development and product improvement purposes. Licensee further agrees that Data Processors may process Licensee Content to further develop Data Processors’ machine learning models and related algorithms and features (“Machine Learning Features”). Data Processors shall be the exclusive owner of all intellectual property rights in such Machine Learning Features and will be free to use Machine Learning Features to improve and enhance the Ancillary Services and for other development, diagnostic and corrective purposes in connection with the Ancillary Services and other, provided that the Machine Learning Features do not disclose any Licensee confidential information.
14.4 Data Processing. Data Processors may transfer and process Licensee Content and Licensee Data in the United States or any other country in which the Data Processors and/or its subcontractors perform services.
15. Third Party Software and Links
15.1 Software. ConstructConnect may separately offer for sale or the Software purchased may contain third-party software which require notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are made a part of and incorporated by reference into this Agreement. By accepting this Agreement, You are also accepting the additional terms and conditions, if any, set forth therein. The Software may facilitate Your access to websites maintained by third parties offering goods, information, software, additional functionality (through plugins, scripts, extension and add-ons) and/or other services (“Third-Party Online Service(s)”). Your access to and use of any Third-Party Online Services is governed by the terms, conditions, disclaimers, and notices found on such site or otherwise associated with such Third-Party Online Services. ConstructConnect may at any time, for any reason, modify or discontinue the availability of any Third-Party Online Services. ConstructConnect does not control, endorse, or accept responsibility for Third-Party Online Services. Any dealings between You and any third-party in connection with any Third-Party Online Services and any other terms, conditions, warranties, or representations associated with such dealings, are solely between You and such third party. Third-Party Online Services might not be available in all languages or to residents of all countries and ConstructConnect may, at any time and for any reason, modify or discontinue the availability of any Third-Party Online Service.
15.2 Links. The Software You purchased may provide links to websites operated by third-parties. ConstructConnect makes no representations or warranties whatsoever about any third-party websites. ConstructConnect is not responsible for the privacy practices or the content of such websites. ConstructConnect prohibits the framing of any materials available through the Software.
16. General Provisions
16.1 This Agreement sets forth ConstructConnect ‘s and its subcontractors and other representatives’ entire liability and Your exclusive remedy with respect to the Software and the related matters set forth herein. You acknowledge that this Agreement is a complete statement of the agreement between You and ConstructConnect with respect to the Software and the related matters, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software and the related Matters. This Agreement does not limit any rights that ConstructConnect may have under trade secret, copyright, patent or other laws. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by You in relation to the Software licensed hereunder shall be of no effect.
16.2 The representatives of ConstructConnect are not authorized to make modifications of this Agreement, or to make any additional representations, warranties or commitments binding upon ConstructConnect, other than in writing and signed by a duly authorized officer of ConstructConnect.
16.3 You acknowledge and agree that no relationship other than that of independent contractor is established between You and ConstructConnect by either use of the Software or by agreement with this Agreement. You are not an employee, agent, joint venturer or partner of ConstructConnect, and neither use of the Software nor agreement with this Agreement create any agency between You and ConstructConnect. No party hereto shall represent to any third party that it is the employee, agent, joint venturer or partner of the other or make any representation or warranty on behalf of or in the name of the other or conduct any business or accept payment or service of legal process for the other.
16.4 In all transactions and processes carried out using the Software, ConstructConnect is and acts as a neutral third-party, and is not an agent of or affiliated with any party using the Software. Neither the use of the Software nor any provision of this Agreement creates an agency relationship with ConstructConnect.
16.5 This Agreement will be construed in accordance with and governed by the laws of the State of Ohio (without reference to choice of law principles), except for trademark, copyright and other matters governed by federal law. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in the State of Ohio or the federal courts in the State of Ohio to resolve any disputes arising under this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You will abide with all applicable local, state, national, and foreign laws, and regulations in connection with their use of the Software, and you represents that you are not named on any U.S. government denied-party list and you shall not permit Authorized Users to access or use the Services in a U.S.- embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.
16.6 If this Software was acquired outside the United States, then You agree and ascend to adherence to all applicable international treaties regarding copyright and intellectual property rights which shall also apply. In addition, You agree that any local laws to the benefit and protection of ConstructConnect’s ownership of, and interest in, its intellectual property and rights of recovery for damages thereto will also apply.
16.7 The failure or delay of ConstructConnect to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach.
16.8 If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
16.9 You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. You agree and certify that You are not a citizen or permanent resident of the following countries: Cuba, Iran, North Korea, Sudan or Syria.
16.10 ConstructConnect and other trademarks contained in the Software are trademarks or registered trademarks of ConstructConnect in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This Agreement does not authorize You to use ConstructConnect ‘s or its licensors’ names or any of their respective trademarks.
16.11 Licensee Acknowledgement. As of the Effective Date, Licensee acknowledges and agrees that an authorized representative of Licensee has evaluated the features and functionality of the Software in a means satisfactory to Licensee and accepts that the Software has been demonstrably shown to have all of the features and functionality that have been represented to Licensee. Licensee agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written public comments made by ConstructConnect regarding future functionality or features.