SUBSCRIBER AGREEMENT (“Agreement”)
Last revised: August 26, 2020
IMPORTANT - PLEASE READ CAREFULLY: This SUBSCRIBER AGREEMENT (this “Agreement”) is a legal
agreement between the person or legal entity agreeing to this Agreement (“Subscriber” or “You” or “Your”)
and Command Alkon Incorporated (“Company” or “We” or “Us” or “Our”), and governs Your use of Company’s
BuildIt platform, including all software applications, data and databases, Content (defined below) and services
provided by or through such platform and all downloadable mobile and other software applications associated
therewith, and any successor platform(s) to the foregoing (collectively, the “Platform” or “Buildit”). By
accepting this Agreement, You agree to comply with and be subject to the terms and conditions of this
incorporated in this Agreement by reference. If You do not agree to be bound by this Agreement, You should
immediately uninstall any downloaded software applications and cease all use of the Platform.
The individual accepting this Agreement for Subscriber represents to Company that he or she is an authorized signatory of Subscriber with authority to bind Subscriber to this Agreement.
If such person does not have this authority, do not sign up Subscriber to the Platform.
If You are an existing customer of Company and have executed a Master License and Services Agreement (“MLSA”) with Company,
then this Agreement is subject to the MLSA in accordance with Section 20(b) of this Agreement.
Any individual accessing and using the Platform, including on a personal computer, tablet or mobile device (a “Device”),
may only do so in her/his capacity as an employee or other representative of Subscriber that has been authorized by Company to use the Platform on Subscriber’s behalf (each an “Authorized Representative”).
Any Personal Information (defined below), including if applicable any geolocation information, that is submitted or collected on such Device is deemed to be submitted by and on behalf of Subscriber.
If you as an individual do not agree to submit Personal Information in this manner, you should stop accessing the Platform and uninstall any downloaded Applications (defined below).
The Platform; Grant of License.
Buildit allows participants in a construction material supply chain, including suppliers, purchasers and transportation providers,
to communicate with each other, and share information regarding jobs and transactions. The Platform may be accessed through a designated internet website portal, on a mobile device,
or through another authorized medium that may be specified by Company from time to time. This Agreement grants You a limited, revocable, non-exclusive, non-sublicensable,
and non-transferable license to access the Platform through an authorized medium, and to use the Platform solely for Your internal business purposes, strictly in accordance with this Agreement.
Your eligibility to access and use the Platform is at all times subject to the acceptance by Company of Your application for account registration and Your continuing compliance with this Agreement.
You represent, warrant, and covenant that: (i) You are a business entity duly formed and validly existing under the laws of its jurisdiction of formation;
(ii) You have the power and capacity to enter into, and to perform Your obligations under, this Agreement;
(iii) this Agreement has been duly authorized, executed, and delivered by You and constitutes a valid and binding obligation of You, enforceable in accordance with its terms;
(iv) Your execution, delivery, and performance of this Agreement does not violate or result in any default under Your governing and constituent documents, bylaws, policies, or any other contract or agreement
to which You are a party or by which Your assets may be bound, or any law, statute, rule, regulation, or order of any country or political subdivision, or any regulatory, self-regulatory, or membership organization
that has jurisdiction over You, or of which You are a member; (v) You will use the Platform only for Your own business and not for the use or benefit of any third party;
and (vi) You will designate Authorized Representatives (defined below) to access and use the Platform on Your behalf, each of whom is at least 18 years of age.
We reserve the right to charge You a fee, subscription charge or other payment for access and use of the Platform, which fee will be specified in a written or electronic agreement between You and Company.
- You agree not to (directly or indirectly): (i) copy (except as expressly permitted under the license), modify, translate or otherwise create derivative works of any part of the Platform,
including any images, photographs, animations, video, audio, music, text, and associated printed materials or online or electronic documentation, excluding Your Subscriber Data (defined below) (collectively, the “Content”) thereon;
(ii) remove or obscure any notice of proprietary rights from the Platform;
(iii) reverse engineer, decompile, disassemble, modify, translate, adapt or attempt to derive the source code or underlying ideas or algorithms of the Platform, or any portion thereof
(except to the limited extent applicable laws specifically prohibit such restriction), or attempt to recreate the Platform, or use the Platform for any competitive purpose;
(iv) sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available the Platform, including any Content thereon, to or for the benefit of any third party;
(v) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Platform.
You agree that You will timely respond to Our reasonable inquiries regarding Your compliance with this Section 3(a).
- You agree that any copies, derivative works or other intellectual property developed by You in violation of this Section 3:
(i) are the property of Company and You hereby assign, and We hereby accept such assignment, any and all associated rights to Company without the need for any other action by a party;
and (ii) are excluded from any warranty or other obligation of Company hereunder.
- Subscriber Credentials. Following approval of Your application for registration of an account, You will be assigned a login ID, passwords and other credentials issued to access the Platform (“Credentials”).
You shall maintain the confidentiality of the Credentials and not permit any third party to use Your Credentials to access or use the Platform. Without limiting the foregoing, You are responsible to Company for the use of the Platform
by any person with whom You have shared Your Credentials or who gains access to the Platform as a result of Your failure to use reasonable security precautions, even if that use was not authorized by You.
- Authorized Representatives. You may authorize Your Authorized Representatives to access the Platform on Your behalf. You may authorize access by such Authorized Representatives via the Platform or by sending Company a request in writing.
We may deny access for any Authorized Representative with or without cause. You will share Content only with those Authorized Representatives who are permitted to see such Content. You are responsible for each Authorized Representative’s compliance
with this Agreement and any other agreement applicable to such Authorized Representative’s use of the Platform and related services. You are responsible for all access and use of the Platform by Your Authorized Representatives.
The individual who signs up for the Platform on Your behalf will be designated as the administrator of Your account (“Account Administrator”), unless You designate another Authorized Representative to act as Account Administrator
by notifying Company in writing. The Account Administrator may be given certain and special access rights with respect to Your account that are not given to other Authorized Representatives,
including the ability to authorize and de-authorize other Authorized Representatives to access Your account, and to authorize the sharing of certain information as discussed in Section 9 below.
- Authorized Representative Credentials. Your Account Administrator will be responsible for authorizing and de-authorizing individuals as Your Authorized Representatives. Each Authorized Representative so designated will be assigned Credentials.
You shall ensure that each Authorized Representative keeps all Credentials strictly confidential, and that Credentials are used only by the applicable Authorized Representative and not used by or disclosed to any other person including
any other Authorized Representative. We may rely on any activity on the Platform conducted through use of Credentials as being authorized activity of You. If there is a change in the eligibility of any Authorized Representative
to access the Platform on Your behalf (including where the Authorized Representative has ceased to be employed or engaged by You), You must promptly (but no later than within three (3) days) de-authorize such individual
through the means provided to Your Administrator on the Platform. You must immediately notify Us if You become aware of or reasonably suspect any breach of security or unauthorized use of Your account or any associated Credentials.
Upon receipt of the foregoing notice, We may in our sole discretion suspend or disable the applicable Credentials. You shall be responsible for any actions taken on Your behalf that occur prior to such notification.
Ownership of Platform.
- You agree that, as between You and the Company, the Platform, including all software, databases, and Content contained therein, and all updates, enhancements or derivatives of the foregoing, all Platform Data (defined below),
all information and data generated, collected or derived by the Platform other than Subscriber Data (defined below) and all intellectual property rights in the foregoing, are owned by Company,
and are protected by copyright and other intellectual property laws and international treaties. You acknowledge and agree that the Platform and Content are provided under license, and not sold, to You.
You do not acquire any ownership interest in the Platform (including any Content or Platform Data), or any other rights thereto, including by implication or estoppel, other than the rights expressly granted, to use the Platform subject
to all terms, conditions and restrictions of this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Platform
including all copyrights, trademarks and other intellectual property rights therein or relating thereto.
- You acknowledge and agree that, in connection with the provision, operation and improvement of the Platform and the associated services, Company will create aggregated or derivative data that is derived from data contained in the Platform,
including in whole or part from Your Subscriber Data (defined below) (the “Platform Data”). Any Personal Information (defined below) or Subscriber Data from which the Platform Data was derived will not be included in the Platform Data,
and/or will otherwise be de-identified so that it does not identify any individual or Subscriber if, and only if, such Platform Data is to be shared with a third party. You hereby authorize Company to create such Platform Data.
You also acknowledge that when You or Your Authorized Representatives access or use the Platform, Company may use automatic means (including, for example, tools, scripts, software, cookies, web beacons and utilities)
to collect information about You or Your Authorized Representatives’ use of the Platform (the “Activity Data”). For the avoidance of doubt, the Activity Data does not include any Personal Information or Subscriber Data
that may be comprised in any Activity Data or from which any Activity Data may be derived. You hereby authorize Company to collect such Activity Data.
You agree that any Activity and/or Platform Data derived by Company in whole or part from the Platform shall be the exclusive property of Company and is deemed to be Company IP, and nothing herein shall limit Company’s use or exploitation
thereof for any purpose and without limitation, provided that any data elements therein derived from Subscriber Data or Subscriber Personal Data may not be disclosed to a third party unless they are aggregated and anonymized.
Operation of Platform.
- Company has the right at all times to continually modify the Platform (including the software applications, analytics, Content, or any other Platform components) as Company may determine in its sole discretion and without notice to You,
including to add or remove functionality or Content. Such modifications may be made due to external factors (including changes in law or legal or regulatory guidance, changes to industry practice, market factors, and changes to external costs),
internal factors (including product, research, design, or personnel changes, changes to technology, security concerns, or updated cost/benefit analyses) or any combination of the foregoing or other factors.
Company does not guarantee that any Content will be made available or will continue to be available on the Platform. Company reserves the right, but has no obligation, to remove, edit, modify, or block any Content,
in each case in Company’s sole discretion, at any time, without prior notice to You and for any reason (including upon receipt of claims or allegations from third parties or authorities relating to such Content,
or if Company is concerned that You may have violated this Agreement).
- You acknowledge that the Platform will be delivered as a service, and that We have no delivery obligation and will not deliver copies of any software comprised in or related to the Platform to You, provided that,
in order to access the Platform on a personal computer, tablet, mobile phone or other mobile device, You or Your Authorized Representative may in some cases be required to download an application, applet,
browser add-in or other program (an “Application”) that is appropriate for the applicable device. You must download an appropriate version of the Application for each of Your devices,
and each such download is licensed for installation on a single device and may not be copied onto any other computer, device or other medium. You may not loan, rent, lease or otherwise transfer the Application to another user.
You or Your Authorized Representative may be required to accept a mobile application user agreement in connection with the download and installation of the Application, pursuant to which the applicable end-user will be granted
a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use the Application and the Platform solely for Your internal business purposes, strictly in accordance with this Agreement and any mobile end user agreement.
Company (and/or its licensors and service providers) retains title and ownership of the Application and any copies thereof, regardless of the form or media in which or on which the original and other copies may exist.
The Application is licensed as a single product, and its component parts may not be separated for use on more than one computer or device.
- You are responsible for, and shall provide and install, Your own hardware, telecommunications, and computing environment (including an Electronic Data Exchange or an Information Systems Service) as necessary or designated by Us
from time to time for accessing the Platform. It is anticipated that technology generally, and the Platform specifically, will evolve over time, and You understand that the requirements for such hardware or software may also change from time to time.
You are responsible for all connection and line charges, including long distance, data plans, and roaming charges. For the avoidance of doubt, it is understood that telecommunications systems and connectivity by You to the Internet,
and otherwise on Your side of the Internet, are complex and outside of Our control and responsibility, and therefore Our obligation to make the Platform accessible shall be limited to providing an operational system that is accessible
via a computer remote from the server via the Internet, and shall be deemed satisfied if such a computer is able to access the Platform with the Credentials provided to You, regardless of whether You experience connection difficulties.
- In connection with Your use of the Platform, You may provide to the Platform and/or the Platform may collect from You, information, including information relating to You and Your transactions and other activity (collectively,
“Subscriber Data”). You agree that, as between You and the Company, You are and will be the sole and exclusive owner of all Subscriber Data. You represent that You have sufficient right under applicable law to transmit,
store, copy, use and transfer into the Platform all Subscriber Data, sent to, from, or stored on the Platform using any Credentials, or otherwise provided by You to Us. You grant Us authorization to access, use, view, store, copy,
create derivative works from and delete any Subscriber Data, as necessary to: (i) provide Services to you; (ii) operate, maintain, improve, transmit, and develop the Platform;
(iii) develop products and services, including summaries, reports and analytics of Subscriber Data; (iv) make Your Shared Data and Trading Partner Networking Information (as defined below) available to other Participants (defined below)
in accordance with the Sharing Principles determined in accordance with Section 9 below; (v) create Platform Data pursuant to Section 5(b); and (vi) use Subscriber Data in other manners as You may authorize from time to time.
You acknowledge that Our own operations and Our use of third parties to operate, maintain, improve, and develop the Platform may result in Subscriber Data being stored or processed on servers which may be located in various countries around the world.
For the avoidance of doubt, Subscriber Data does not include any Activity Data. Following termination or expiration of this Agreement, Your Shared Data and Trading Partner Networking Information will no longer be available to other Participants,
but we will have the right to continue to maintain Your Subscriber Data within our databases for use as described above, subject to the terms of this Agreement, including Section 8 (Collection of Personal Information).
- You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of Your privacy and property or disclosure of Your confidential information. Company will implement reasonable and appropriate measures
to maintain the security of Subscriber Data. Company’s security measures will be consistent with reasonable standards used in the applicable software or information technology industry, and will reasonably protect the privacy, confidentiality,
integrity, and availability of Subscriber Data. Company’s security measures and procedures will include reasonable administrative, physical, technical, and procedural safeguards.
You will comply with all applicable security and other procedures imposed by or applicable to the network or platform that You use to access and use, and to submit Subscriber Data to, the Platform.
- You agree to maintain all back-up data necessary to replace Your critical Subscriber Data in the event of loss or damage to such data from any cause.
- You acknowledge and agree that, in connection with the provision of the Platform and the associated services: (i) Company will access, copy, host, store, analyze, make derivatives and/or transmit the Subscriber Data, and You hereby grant
to Company the right to do any and all of the foregoing in connection with its operation, development, improvement and maintenance of the Platform and the performance of its obligations hereunder; and (ii) Company may retain subcontractors,
consultants and other third parties to assist or support Company in operating, developing, improving or maintaining the Platform and/or or providing the associated services, and may disclose Subscriber Data to any such third party for use
in connection with providing such assistance and support to Company.
- Company may use tools, scripts, software, cookies, web beacons and utilities to monitor and administer the Platform, including to operate, maintain, improve, and develop the Platform, to ensure service quality,
to evaluate and maintain the Platform and the security thereof, and to evaluate compliance with this Agreement, applicable laws, rules, or regulations. We do not tolerate the piracy of any Company software,
and we pursue (both civilly and criminally) those who do so using all legal means available, including public and private surveillance resources. As part of these efforts, Company reserves the right to embed a software security mechanism
within the Platform to monitor usage of the Platform to detect and deter violations of, and verify Your compliance with, this Agreement. You agree that Company’s monitoring activities will not entitle You to any cause of action or
other right with respect to the manner in which Company monitors Your usage of the Platform and enforces, or fails to enforce, this Agreement.
Collection And Use Of Personal Information.
- The Subscriber Data provided by or on behalf of, or collected from, a Subscriber or its Authorized Representatives, may include information about an individual or from which the identity of an individual can reasonably
be ascertained (“Personal Information”). You represent that You have sufficient rights under applicable law (including without limitation U.S. privacy law and any E.U. privacy law, including the General Data Protection Regulation)
to transmit, store, copy, use and transfer to Company all Subscriber Data, including any Personal Information, sent to, from, or stored on the Platform using Credentials assigned to You and Your Authorized Representatives,
or otherwise provided by You to Company as part of Our administration of the Platform and related services. You hereby irrevocably consent and agree that the Subscriber Data submitted to the Platform, including any Personal Information,
may be stored on servers not located within the United States or European Union, and accessed remotely by Company from anywhere in the world.
- The individual Authorized Representative using the Platform may provide, or We may otherwise collect from such Authorized Representative, Personal Information about such individual. Each Authorized Representative hereby agrees
that such Personal Information may be collected and that such Personal Information shall be treated as, and subject to the same protections as, Subscriber Data under this Agreement.
- Subject to Section 9 below, all Personal Information provided to Company by Subscriber or its Authorized Representatives through the Platform will be held and maintained in accordance
- The Platform allows You to communicate, interact with, and exchange data with, other participants in the
Platform (each, a “Participant”), including third parties with which You do business, in accordance with the sharing
principles of the system as described herein (the “Sharing Principles”). You acknowledge and agree that Your Trading
Partner Networking Information (defined below) will be visible to all Participants. “Trading Partner Networking
Information” means Your name, the names and locations of any projects or jobs You have entered into the Platform,
and a general description of Your area of business. If at any time You do not agree to the sharing of Your Trading
Partner Networking Information with all Participants on the Platform, You should immediately uninstall any downloaded
software applications and cease all use of the Platform. In addition, Your Account Administrator will have the ability to
set certain parameters to enable additional categories of Your Subscriber Data to be shared with other Participants,
and in certain cases limit such sharing to particular Participants (all such Subscriber Data that will be shared (other
than Trading Partner Network Information), the “Shared Data”). You will have the ability to make changes to Your
sharing parameters from time to time.
- You hereby agree and authorize Company to share Your Subscriber Data with other Participants
consistent with the share settings that You as a Subscriber select pursuant to Section 9(a). You acknowledge that
Other Participants may share their subscriber data with You, and You agree that You will use all such shared data
solely for Your own business and the purposes for which they shared their subscriber data with You (including disclosing
to third parties if necessary for Your business purposes), and will not otherwise sell, resell, disclose, redistribute,
transfer or otherwise use or exploit or make available such shared data for any other purpose.
- Any communications and sharing of Subscriber Data between You and other Participants by and through
the Platform are solely between You and the applicable other Participants, and Company and the Platform are only
providing a medium for such communications and data sharing. Company has no responsibility for the content of such
communications and data sharing. Company reserves the right in its discretion to terminate any Participant that uses
Shared Data in any manner that is in violation of this Agreement, including the System Rules. Notwithstanding anything
to the contrary herein, You acknowledge and agree that Company has no responsibility or liability to You for: (i) any
use or misuse of any of Your Shared Data by other Participants; or (ii) any violation of this Agreement by any other
Connectivity Between the Platform and Other Systems.
- Company may establish, from time to time, connectivity between the Platform and a software application,
service or platform provided by a third party (a “Third Party System”). If You are a subscriber to both the Platform and
such Third Party System, then You may be able to utilize such connectivity to exchange certain information between
the Platform and the Third Party System. This connectivity is made available to You as a convenience only, and You
acknowledge and agree that, notwithstanding this connectivity, Company is not responsible for any of the services or
content provided by the Third Party System, or for any data held by or transferred to such Third Party System, and
Your use of such Third Party System is subject to any agreement between You and the provider of such Third Party System.
- Company may, from time to time, make available to You certain information or means to allow You to
develop connectivity between the Platform and a Third Party System. Such connectivity information and means may
include an Application Programming Interface (“API”), a Software Development Kit (“SDK”) and associated software,
or other technical means or information. Such API, SDK, or other connectivity information and means typically will be
made available pursuant to the terms of a separate license agreement, which will permit You to establish such
connectivity solely pursuant to the terms of that agreement. You agree that you will use such connectivity only for Your
own business, and only for the particular purpose expressly permitted in that connectivity agreement, which may include
exchanging data with other platforms and third parties as necessary for Your own business purposes, but You will not
otherwise use or exploit or make available such connectivity, or any data transferred using such connectivity, for any
other purpose, including to develop or support a commercial product or service competitive with the Company’s
products or services. You are solely responsible for any such software or hardware You develop or use for such
connectivity, and for any such software, system or platform used to connect to the Platform as permitted in the applicable connectivity agreement.
Suspension of Services.
We have the right to take appropriate action to address risks to the Platform, including any data or other
content therein. Without limiting the foregoing, in the event of a severe or imminent threat to the Platform, We may
immediately suspend Your right to access or use any portion or all of the Platform and related services if: (i) We
reasonably believe that the Platform is being used in violation of the associated agreements or applicable law; (ii) in
Our determination, Your use of the Platform interferes with the normal operations of the Platform or other Participants,
or creates any threat to the security of the Platform or the content of any other subscriber; (iii) We become aware of
what We, in our sole discretion, deem a credible claim that the Platform infringes upon the intellectual property rights
of a third party; or (iv) We are required to do so by law. We will not be liable for any claims or damages of any kind
arising out of a suspension under this Section. We may maintain a suspension for as long as reasonably necessary to
address severe, imminent risks to the Platform or any subscriber content. Our right to suspend under this Section is in
addition to Our right to terminate pursuant to Section 14 herein.
Company may from time to time in its sole discretion develop and provide Platform updates, which may include
bug fixes, patches and other error corrections, upgrades and/or new features (collectively, including related
documentation, "Updates"). Updates also may modify or delete in their entirety certain features and functionality. You
agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features
or functionality. You further agree that all Updates will be deemed part of the Platform and be subject to all terms and conditions of this Agreement.
Third Party Materials.
The Platform may display, include or make available third party content (including data, information, software
applications and other products, services and/or materials) or provide links to third party websites or services, including
through third party advertising (collectively, "Third Party Materials"). You acknowledge and agree that Company is not
responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance,
legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or
responsibility to You or any other person or entity for any Third Party Materials. Third Party Materials and links thereto
are provided solely as a convenience to You and You access and use them entirely at Your own risk and subject to such third parties' terms and conditions.
- Without prejudice to any other rights or remedies at law or in equity, Company may terminate this
Agreement and Your right to access and use the Platform, without notice and without any obligations to You, if: (i) You
fail to comply with the terms and conditions of this Agreement; or (ii) if Company ceases to provide or operate the Platform.
- You may terminate this Agreement at any time by closing Your account.
- Either party may terminate this Agreement immediately with written notice to the other party in the event
that the other party becomes subject to any bankruptcy or insolvency proceeding under federal or state statute.
- Upon termination or expiration of this Agreement: (i) all rights granted to You under this Agreement will
also terminate; (ii) You must cease all access to and use of the Platform (including by all of Your Authorized
Representatives); and (iii) You must uninstall and delete all copies of any Applications installed on your Device(s) or
otherwise held by You. The following provisions will survive termination or expiration of this Agreement: 3 (Use
Restrictions), 5 (Ownership of Platform), 7 (Subscriber Data), 8 (Collection and Use of Personal Information), 14
(Termination), 15 (Disclaimers of Warranties; Limitation of Liability), 16 (Indemnification), 19 (Governing Law and Venue) and 20 (General Provisions).
- Upon Your written request to Company made within sixty (60) days of expiration or termination of this
Agreement, Company will deliver to You (or provide You a means to download) a copy of Your Subscriber Data, in a
commercially-available file format. Company has no obligation to maintain any data on Your behalf after such sixty (60) day period.
DISCLAIMERS OF WARRANTIES; LIMITATIONS OF LIABILITY.
- THE PLATFORM, AND THE CONTENT AND SERVICES PROVIDED THEREON, ARE PROVIDED “AS IS” AND COMPANY (ON BEHALF OF ITSELF AND ITS AFFILIATES, VENDORS, LICENSORS AND SERVICE PROVIDERS) HEREBY EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED
BY LAW ALL WARRANTIES, EXPRESS OR IMPLIED, ON THE PLATFORM AND CONTENT FURNISHED IN CONNECTION THEREWITH, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, SUITABILITY, ACCURACY
OF DATA OR SYSTEM INTEGRATION, INTEGRITY, UPTIME AND/OR AVAILABILITY, OR ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING, PERFORMANCE, USAGE OR TRADE PRACTICE. COMPANY (ON BEHALF OF ITSELF AND ITS AFFILIATES,
VENDORS, LICENSORS AND SERVICE PROVIDERS) DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PLATFORM, CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS,
SYSTEMS OR SERVICES, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR THAT THE OPERATION THEREOF WILL BE SECURE, UNINTERRUPTED, FREE FROM BUGS, VIRUSES OR ERRORS OR OTHER PROGRAM
LIMITATIONS. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE AND ANY RELIANCE UPON THE PLATFORM, CONTENT AND SERVICES IS AT YOUR OWN RISK.
- REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, YOU AGREE THAT COMPANY, ITS AFFILIATES, VENDORS, LICENSORS AND SERVICE PROVIDERS, SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LIABILITY FOR:
(i) PERSONAL INJURY OR PROPERTY DAMAGE; (ii) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOSS OR DESTRUCTION OF DATA,
COMPUTER FAILURE OR MALFUNCTION, BUSINESS INTERRUPTION, COSTS OF COVER, LOSS OF USE, LOSS OF GOODWILL OR ANY OTHER LOSS, OR FOR EXEMPLARY DAMAGES; (iii) OR DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT, IF ANY,
ACTUALLY PAID BY YOU FOR THE PLATFORM; IN EACH CASE WHETHER RESULTING FROM YOUR USE OR INABILITY TO USE THE PLATFORM, CONTENT OR SERVICES, OR FOR DAMAGES RESULTING FROM OR RELATING TO CLAIMS BROUGHT AGAINST YOU BY THIRD PARTIES OR OTHERWISE,
EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY (ON BEHALF OF ITSELF AND ITS AFFILIATES, VENDORS, LICENSORS AND SERVICE PROVIDERS) DISCLAIMS ANY LIABILITY
FOR PRODUCT LIABILITY AS A CONSEQUENCE OF LOSS OR DAMAGE TO PROPERTY WHICH, IN VIEW OF ITS NATURE, IS NORMALLY INTENDED FOR COMMERCIAL USE. THESE LIMITATIONS OF COMPANY’S (AND ITS AFFILIATES’, VENDORS’, LICENSORS’ AND SERVICE PROVIDERS’)
LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE. ANY ACTION AGAINST COMPANY MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS
OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY REASON IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US
FOR USE OF THE PLATFORM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
You agree to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions,
judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to Your misuse of the Platform or Your breach of this Agreement. Furthermore,
You agree that Company assumes no responsibility for the Content You submit or make available through the Platform.
Compliance With Law.
- You shall use the Platform and Content in full compliance with all applicable laws and regulations, including all laws and regulations applying to privacy and personal information.
- The Platform may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Platform to, or make the
Platform accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required
undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Platform available outside the U.S.
- You represent and warrant that You and/or Your Authorized Representatives: (i) are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a
“terrorist supporting” country; and (ii) are not listed on any U.S. government list of prohibited or restricted parties.
- Both parties undertake to comply with applicable data protection law (including U.S. privacy law, the E.U. General Data Protection Regulation, and applicable data protection laws of other jurisdictions worldwide) (“DP Laws”).
Where in connection with the Platform, We process personal data (as defined in the DP Laws) supplied by You, we are doing so as a data processor on Your behalf. We shall: (i) only process such personal data in accordance with Your
instructions which include use of such personal data as part of providing the Platform; and (ii) take appropriate technical and organization measures to prevent unauthorized or unlawful processing of such personal data and against
accidental loss or destruction of, or damage to, such personal data. You acknowledge that We may transfer any such personal data outside of Your jurisdiction and, in any event, from jurisdiction to jurisdiction, but any such transfer shall
not relieve Us from Our obligations under this clause, and You and We will enter into any required data processing agreements or separate data transfer agreements as required to effectuate such transfer per applicable data protection
law. You hereby acknowledge and agree that We may appoint sub-contractors who may act as sub-processor(s) of the personal data, and that You shall have an opportunity to object to such sub-processor(s) if required by applicable data
privacy law. We maintain an up-to-date list of such sub-processors on the Legal Section of Our website
[https://commandalkon.com/wp-content/uploads/2019/10/Command-Alkon-Incorporated-Data-Sub.pdf] and we will
provide a notification on the Platform in the event of a change to this list.
U.S. Government Rights.
The Platform and Content: (i) include commercial technical data and/or computer databases and/or commercial computer software and/or commercial computer software documentation, as applicable, which were
developed exclusively at private expense by Command Alkon Incorporated, 1800 International Park Drive, Suite 400, Birmingham, Alabama 35243; (ii) are Company trade secrets for all purposes of the Freedom of Information Act; and
(iii) are in all respects Company proprietary data and all rights are reserved under the copyright laws of the United States. The U.S. government’s rights to use, modify, reproduce, release, perform, display, or disclose these technical
data and/or computer databases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) and/or subject to the restrictions of DFARS 227.7202-1(a) and
DFARS 227.7202-3(a) (June 2013), as applicable for U.S, Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (May 2014) and/or restricted rights provisions of FAR 52.227-14 (May 2014) and FAR
52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense federal procurements.
Governing Law And Venue.
The interpretation of this Agreement shall be governed by any applicable federal law, and the laws of New York, without giving effect to any choice or conflict of law provision or rule (whether in New York or any other jurisdiction)
that would cause the application of the laws of any other jurisdiction. To the extent that the United Nations Convention on Contracts for the International Sale of Goods (the “Convention”) would be applicable to this Agreement or any other
dealings or transactions between the parties that are the subject matter of the foregoing, the parties hereby expressly “opt out” of the Convention and expressly state that the Convention is inapplicable to this Agreement and the
transactions between the parties that are the subject matter of the foregoing. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the state and federal courts located in New York, New York for the purpose of
any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby.
- If any provision of this Agreement shall be found to be illegal or unenforceable, then, notwithstanding such illegality or un-enforceability, this Agreement shall remain in full force and effect and such provision shall be
deemed to be deleted. Furthermore, if possible to ascertain the intent of the parties, there shall be added a substitute provision as similar in substance as legally possible and the remainder of this Agreement shall not be affected.
- This Agreement and the policies referenced herein, along with any MLSA that exists between you and Company, if any, constitute the entire agreement between You and Company with respect to the Platform and
supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. For the avoidance of doubt, this Agreement is not intended to terminate or supersede
any MLSA in place between You and Company. With respect to Your use of the Platform, in the event of a conflict between any provision of this Agreement and such MLSA, the provision of this Agreement shall prevail.
- Any failure or delay by either party in exercising any right or remedy will not constitute a waiver of such right or remedy.
- This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. You may not assign or transfer this Agreement, in whole or part, or any rights or obligations
thereunder, without the prior written consent of Company. In the event of any attempted assignment or transfer by You in violation of this Section, such purported assignment or transfer shall be void and without force or effect. Company
may assign its rights and obligations under this Agreement to any of its affiliates, or to an entity other than an affiliate, that acquires all or substantially all of the assets or stock of, merges or consolidates with or into, or acquires a controlling
interest in it or any of its affiliates.
- Company shall not be liable to You for any delay, failure or inability to perform its obligations under this Agreement, or any losses arising in connection with the foregoing, due to any cause beyond its reasonable control,
including utility failures, equipment breakdowns, fires, storms, accidents, acts of God, acts of war, acts of terrorism, labor shortages, telecommunications or Internet failures, or any act or omission by You. You acknowledge that
there are risks inherent in maintaining the Subscriber Data in a remote server and software network (“Cloud-Based”)
environment, including the risk of hacking or other unauthorized third party access to the Subscriber Data, and We are not responsible to You for any unauthorized access to Subscriber Data or the unauthorized use of the Platform. You
acknowledge that, in order to provide the Platform, Company will use networking and communication infrastructure and services that are not under Company’s control (collectively, “Infrastructure”) and will, from time to time, use the
services of third party providers and licensors (“Third Party Providers”). Company’s ability to provide the Platform will depend on the provision and availability of such Infrastructure and/or services and support by Third Party Providers,
and We are not responsible to You under this Agreement or any supplements thereto for any failure by Us that is directly or indirectly caused by the unavailability or performance of such Infrastructure or Thirty Party Provider service
or support. The services and licenses obtained by Us from any Third Party Provider, and Your use thereof, may be restricted by the terms of such licenses and applicable agreements. We are not responsible to You hereunder for any failure arising from any
actions or inactions of a Third Party Provider.
- The section headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. The words “include,” “includes,” and “including” shall be deemed to be followed by
the phrase “without limitation.”
- Company reserves the right to modify the terms of this Agreement at Company’s discretion.
Should You have any questions concerning this Agreement, or if You desire to contact Company for any reason, please contact Company at:
COMMAND ALKON INCORPORATED
Attn: Associate General Counsel
1800 International Park Drive, Suite 400
Birmingham, Alabama 35243
+1 (205) 879-3282