This Master Subscription Agreement ("MSA") is a legal agreement between you ("Subscriber") and ConstructConnect, Inc., ("ConstructConnect"), a Delaware Corporation. It governs your acquisition and use of our Services. By signing an order form that references this MSA or agreeing to this MSA when presented, you accept and agree to be bound by its terms from the date of such action. This MSA replaces any previous agreements related to the Services, which ConstructConnect may unilaterally amend. ConstructConnect may modify this MSA or any additional terms relevant to the Services due to changes in the law or the Services themselves. Revised versions of the MSA will be posted on the ConstructConnect Site at least 10 days before the Effective Date of the new terms. By continuing to use the Services after the modifications take effect, Subscriber acknowledges acceptance of the modifications. Subscriber agrees that ConstructConnect shall not be held liable to Subscriber or any third party for any modifications made to this MSA.
For purposes of the MSA, the terms below are defined as follows:
“CC Registrant” means a third-party who has registered for services provided by ConstructConnect or otherwise affirmatively indicated an interest in registering for the Services.
“CC Data” means all data provided on a non-exclusive basis by ConstructConnect to Subscriber via the Services for the purpose of enabling Subscriber to conduct Subscriber’s business activities with third parties via the Services.
“CC Registrant Data” means CC Data about a CC Registrant collected by ConstructConnect. CC Registrant Data is owned exclusively by ConstructConnect.
“Contact Data” means data about Subscriber’s business contacts that Subscriber may provide to ConstructConnect with the purpose of allowing ConstructConnect to: (i) contact Subscriber’s business contacts for the purpose of promoting the use of Subscriber’s products or participation in Subscriber’s projects, (ii) use Contact Data to facilitate the distribution of Product Data and Project Material to CC Registrants and (iii) use Contact Data to promote the benefits of becoming a CC Registrant.
“Documentation” means ConstructConnect’s then-current technical and functional documentation for the Services as made generally available by ConstructConnect.
“Product Data” means data relating to Subscriber product characteristics shared by Subscriber with ConstructConnect.
“Project Material” means documents and data created, modified, or otherwise sourced by Subscriber related to a specific construction project or bidding opportunity that Subscriber uploads into the Services.
“Service Fees” means fees charged for ConstructConnect to provide the Services to Subscriber, as set forth in Section 8.
“Service Term” means length of time as defined in Section 5.
“Services” means access to, and the use of the services, website, products, software, and documentation as set forth in Order Forms and support thereof by ConstructConnect pursuant to Sections 2 and 3 of this MSA.
“Suppliers” means all third-party licensors and other suppliers that provide any portion of the Services.
2. ORDERING SERVICES.
Subscriber will order Services pursuant to (1) ConstructConnect’s standard online order forms which will be effective upon Subscriber clicking a box indicating acceptance or (2) a custom order form referencing this MSA that will be effective upon execution by each party (each, an “Order Form”). If applicable, the number of Affiliated Users for a specific Service may be set forth in the applicable Order Form. If the number of Affiliated Users of a Service substantially exceeds the number of users set forth on the applicable Order Form, ConstructConnect and Subscriber will negotiate an equitable adjustment of fees, payable upon receipt. Each Order Form shall refer specifically to this MSA and shall become effective only when signed by authorized representatives of Subscriber and ConstructConnect. Each duly executed Order Form shall become a part of this MSA and shall be subject to all the terms and conditions set forth herein.
3. SERVICE AND LICENSE.
3.1. Service. Subject to payment of all applicable fees and full compliance by Subscriber with the MSA, ConstructConnect will (a) provide Subscriber and Affiliated Users with access to the Services during the Service Term, and (b) provide and enable Subscriber to install on a device or server owned, operated, or leased by Subscriber all ConstructConnect software necessary to access the Services. ConstructConnect will provide reasonable technical and user support of the foregoing at no additional cost to Subscriber during the Service Term.
3.3. Exclusions. ConstructConnect will not be obligated to provide access to any other programs, workflows, process management or functionality not explicitly identified in an Order Form. Subscriber may choose to use products or services that are provided or supported by third parties (“Third-Party Services”) and not incorporated into or provided as a part of the Services. Third-Party Services are provided pursuant to the terms of the applicable third-party license or separate agreement between the licensor of the Third-Party Services and Subscriber, and ConstructConnect assumes no responsibility for, and hereby specifically disclaims all liabilities and/or obligations with respect to, all Third-Party Services. Furthermore, ConstructConnect may provide, or third parties may provide, links to other third-party web sites or resources that are beyond ConstructConnect’s control. ConstructConnect makes no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and Subscriber hereby waives any claim against ConstructConnect with respect to such sites. CONSTRUCTCONNECT IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE. Subscriber’s correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between Subscriber and such advertiser or partner. ConstructConnect bears no responsibility or liability for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party web sites or resources through the Services.
3.4. Availability. ConstructConnect will use commercially reasonable efforts to make the Services available to Subscriber during regular business hours without material interruption, except for (i) scheduled maintenance and repairs for which ConstructConnect has provided Subscriber with reasonable advance notice, and (ii) any loss or interruption due to causes beyond the control of ConstructConnect, including, but not limited to, delay, interruption or failure of telecommunication or Internet transmission.
3.5. Restrictions; Prohibited Actions. Except as authorized herein, Subscriber will not: (a) sell, rent, lease, share, loan, sublicense, disseminate, assign, transfer, hypothecate, grant a security interest in or otherwise provide the Services or CC Data to third parties, make the Services available for use by third parties, or use the Services or CC Data for the benefit of any third party including through any outsourcing, timesharing, service bureau, facilities management, practice management, billing or data processing service basis; (b) copy, reproduce, modify, adapt, translate or create any derivative works from the Services or CC Data; (c) disassemble, decompile, reverse engineer, or make any other attempt by any means to discover or obtain the source code for the Services or CC Data; (d) remove, alter, obscure or tamper with any trademark, copyright or other proprietary markings or notices affixed to or contained within the Services or CC Data; (e) take any action that may adversely impact or impair ConstructConnect’s or its Suppliers’ rights, title and interest in the Service; (f) use the Services (including, without limitation, any content and materials accessible via the Service), Contact Data or CC Data in a manner that infringes, misappropriates or violates upon the intellectual property rights of any third party, (g) interfere with or disrupt the integrity, operation or performance of the Services or interfere with the use or enjoyment of it by others; (h) use the Service to create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or circumvent or compromise the security of the Services, (i) encourage or permit any Affiliated User or other third party to engage in any of the foregoing; (j) use the Services or allow a third-party to use the Services to license or develop products that compete with ConstructConnect’s products or Services; (k) use the Services in any way that exposes other subscribers, users, ConstructConnect Partners, or ConstructConnect to harm; (l) otherwise use the Services except as expressly allowed under this MSA.
3.6. Notification Obligation. Should Subscriber gain knowledge of any of the (i) Prohibited Actions in Section 3.5 and (ii) Section 6.5 (Non-compete) activities not otherwise subject to a pre-existing consent from ConstructConnect, Subscriber must promptly provide notice to ConstructConnect.
3.7. ConstructConnect Remedies for Violations. ConstructConnect may suspend the Subscriber of any Authorized Users for failure to comply with this MSA or the Terms of Acceptable Use. ConstructConnect will notify Subscriber in writing prior to any such suspension or disablement, unless ConstructConnect reasonably believes: (a) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice to prevent imminent harm to the Services or a third party. Under circumstances where notice is delayed, ConstructConnect will provide the notice when the related restrictions in the previous sentence no longer apply.
4. SUBSCRIBER DATA AND SECURITY.
5. TERM AND TERMINATION.
5.1. MSA Term. This MSA will commence on the Effective Date and, unless terminated earlier in accordance with this MSA, will remain in effect for the duration of the Subscription Service Term or any renewal thereof.
5.2. Service Term. The Initial Service Term will be set forth in the Order Form. Upon the expiration of the Initial Service Term for a particular Service, the Order Form will automatically renew for successive subscription periods of equal length (a “Renewal Service Term”; the Initial Service Term, together with any Renewal Service Terms, is hereinafter referred to as the “Service Term”) and fees will be billed to Subscriber as provided in Section 8, unless canceled by either Party prior to the expiration of the then-current Term as provided below.
5.3. Termination for Convenience. The parties acknowledge and agree each Service Term is priced as a minimum term and may not be terminated for convenience. Subject to the foregoing, ConstructConnect may not terminate any Services for convenience.
5.4. Termination due to discontinuation of Service. In the event ConstructConnect generally discontinues offering a product or service provided hereunder, it will provide Subscriber with the maximum advance notice practicable thereof and Subscriber may, at its discretion, elect to receive a pro rata refund of any fees paid in advance for same or apply such fees toward a subscription to an alternative Service.
5.5. Termination for Cause. Either Party may, following notice to the other Party, terminate a subscription to the Service (and/or, in the case of ConstructConnect, block or prevent Subscriber’s access to and use of the Service, the ConstructConnect Site and any other related websites) in the event the other Party has committed a material breach of this MSA and failed to cure such breach within ninety (90) days following written notice thereof delivered by the non-breaching Party.
5.6. Effect of Termination. Upon termination or expiration without renewal of this MSA or of any Service Term, all rights granted to Subscriber hereunder with respect to the applicable Service and CC Data will terminate. Upon such termination or expiration, Subscriber will immediately cease all use of the applicable Service and CC Data. In addition, Subscriber promptly will pay to ConstructConnect all fees and other amounts due and owing under this MSA, if any, and ConstructConnect will deliver to Subscriber a pro rata refund of any fees paid in advance for the balance of the Service Term, through the date of termination will be set off against outstanding amounts owed by Subscriber, if any, and the balance paid out by ConstructConnect to Subscriber in a lump sum at termination. Notwithstanding anything to the contrary contained herein, any provisions which, by their nature, are intended to survive any expiration or termination of this MSA will so survive, including Sections 7, and 9–12, including the Parties’ respective indemnification obligations with respect to claims accruing prior to expiration or termination of this MSA.
6. PROPRIETARY RIGHTS AND USER DATA
6.1. ConstructConnect Ownership. Except as otherwise expressly set forth in this MSA, all worldwide right, title and interest in and to the Services or CC Data and related materials (including all modifications, alterations, and enhancements thereto and derivative works thereof) and all copies thereof are and will remain the exclusive property of ConstructConnect and its Suppliers. As between Subscriber and ConstructConnect, ConstructConnect will own all right, title and interest in and to all data ConstructConnect collects and anonymizes in connection with the operation of the Services. Subscriber hereby acknowledges and agrees Services and CC Data are licensed to Subscriber, not sold.
6.2. Subscriber Ownership. Except as otherwise expressly set forth in this MSA, all worldwide right, title and interest in and to the Contact Data, Product Data, Project Material (including all modifications, alterations, and enhancements thereto and derivative works thereof) and all copies thereof will remain the exclusive property of Subscriber. ConstructConnect hereby acknowledges and agrees that Contact Data, Product Data, and Project Material are licensed to ConstructConnect, not sold.
6.3. ConstructConnect Grants CC Data License Rights to Subscriber. Subject to all the conditions in the MSA, ConstructConnect hereby grants Subscriber a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the Service Term to use, modify, and distribute the CC Data for the purpose of conducting Subscriber’s business activities with third parties using the Services.
6.4. Subscriber Grants of Rights to ConstructConnect.
(a) Contact Data License. Subject to all the conditions in the MSA, Subscriber hereby grants to ConstructConnect a limited, non-exclusive, non-transferable license for ConstructConnect to use, copy, and modify the Contact Data, in whole or in part, during the Service Term for the purpose of allowing ConstructConnect to: (i) share Contact Data with CC Registrants within Services for the purpose of encouraging use of Subscriber’s products or seeking participation in Subscriber’s projects and (ii) to use Contact Data to facilitate the distribution of Product Data and Project Material to CC Registrants. Notwithstanding anything to the contrary and regardless of the origin of any datum, if ConstructConnect’s use of the Contact Data results in a Subscriber business contact becoming a CC Registrant, (1) ConstructConnect will independently own the CC Registrant Data for that CC Registrant even if the CC Registrant Data originated from Contact Data and (2) Subscriber will retain independent ownership of the Contact Data, regardless of the origin of any particular datum. For the avoidance of doubt, ConstructConnect will not be required to delete CC Registrant Data at the end of the Service Term.
(b) Product Data and Project Material. Subject to all the conditions in the MSA, Subscriber hereby grants to ConstructConnect a non-exclusive, worldwide, transferable, and sublicensable right to use, copy, modify, distribute, publish, and process, Product Data and Project Material that Subscriber provides through the Services without any further consent, notice, and/or compensation to Subscriber. Subscriber may terminate this license for specific content by deleting such content from the Services, or generally by closing the Subscriber account(s), except (a) to the extent Subscriber shared the Product Data and Project Material using the Services with a third-party and (b) for the reasonable time it takes to remove from backup and other systems.
6.5. Non-Compete. Subscriber will not use, and will prevent its Affiliated Users from using, the CC Data to compete with any products or services of ConstructConnect or its affiliates or to benchmark ConstructConnect Services against competing services. Subscriber represents, warrants and covenants to ConstructConnect that it and its Affiliated Users, employees and independent contractors who receive CC Data are not, and will not during the Service Term be, suppliers of project leads to other entities without the express written consent of ConstructConnect.
6.6. User Data. Subscriber and its Affiliated Users are solely responsible for all contact information, literature, or other information of any kind, including subsequently posted addenda, uploaded by Subscriber or any of its Affiliated Users (collectively “Content”).
(a) ConstructConnect may at its discretion delete or archive posted Content at any time.
(b) ConstructConnect may make tracking data and other metadata concerning such Affiliated Users’ access to and history or use of CC Data available to CC Registrants.
(c) In the normal use of Services, subscribers and their Affiliated Users may post profiles. ConstructConnect is not obligated to but may correct errors in profiles to enhance operation of Services.
6.7. Each Party hereby expressly reserves all rights not explicitly granted to the other Party under this MSA.
7.1. In connection with this MSA, each Party may disclose (“Disclosing Party”) to the other Party (“Receiving Party”) certain Trade Secrets and Confidential Information. The Receiving Party acknowledges and agrees the Trade Secrets and Confidential Information and, subject to Sections 6.1 and 6.2, any derivative works thereto are the sole and exclusive property of the Disclosing Party (or a third party providing such information to the Disclosing Party). As used herein, “Trade Secrets” means information of a Party, its licensors, suppliers, Subscribers, or prospective licensors or Subscribers which (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of reasonable efforts to maintain its secrecy. As used herein, “Confidential Information” means information, other than Trade Secrets, that is of value to its owner and is treated as confidential, including, but not limited to, Product Data, pricing, volume discounts, future business plans, patterns, devices, methods, techniques, know-how, drawings, processes, financial data, financial plans, product plans and information regarding actual or potential Subscribers or suppliers.
7.2. If Subscriber sends, discloses, uploads, posts, or otherwise provides to ConstructConnect any Content, Product Data or Project Material (hereinafter collectively referred to as “Subscriber Data”), Subscriber hereby (a) acknowledges and agrees providing such Subscriber Data to ConstructConnect is on a non-confidential basis, and ConstructConnect will have no obligation to keep such Subscriber Data secret, to refrain from using such Subscriber Data in accordance with this MSA, or to compensate Subscriber for the receipt or use of such Subscriber Data, (b) releases ConstructConnect from any liability under any legal theory in connection with the use, modification, sale, or disclosure of any Subscriber Data to the extent such use, modification, sale or disclosure is permitted under this MSA, and (c) irrevocably waive all “moral rights” you may have in such Subscriber Data.
7.3. Obligation. The Receiving Party’s obligations under this MSA regarding Confidential Information will remain in effect for the Service Term of this MSA and for three (3) years thereafter; provided the Receiving Party’s obligations under this MSA regarding the Trade Secrets will remain in effect for as long as such information will remain a Trade Secret under applicable law. During that time the Receiving Party will hold in confidence and not distribute the Trade Secrets or the Confidential Information or any portion thereof except to effectuate the purposes of this MSA and then only to (i) employees or agents who have a need to know, and (ii) those third parties whose professional involvement necessitates it, such as auditors, accountants, and legal representatives, and who are subject to restrictions on redistribution of the Confidential Information or Trade Secrets at least as restrictive as this one. The Receiving Party agrees to return to the Disclosing Party, upon request, the Trade Secrets and Confidential Information and all materials relating thereto. Subscriber represents, warrants, and covenants to ConstructConnect that it has entered this MSA under its true name and is not, directly or indirectly, impersonating any real or fictitious person or entity or otherwise acting to withhold the actual identity of Subscriber.
7.4. Reservation. The Receiving Party further acknowledges and agrees the disclosure of the Trade Secrets and Confidential Information to it does not confer upon Receiving Party any license, interest, or rights of any kind in or to the Trade Secrets or Confidential Information other than as set forth in this MSA or otherwise expressly agreed upon in writing by the Parties.
7.5. Limitations. The obligations set forth in this section do not apply to the following information: (i) at the time of disclosure hereunder such information is generally available to the public; (ii) after disclosure hereunder such information becomes generally available to the public through means other than a breach of this MSA by the Receiving Party; (iii) the Receiving Party can demonstrate such information was in its possession prior to the time of disclosure by Disclosing Party without confidentiality obligation; (iv) the information becomes available to the Receiving Party without confidentiality obligation from a third party which is not legally prohibited from disclosing such information; (v) the Receiving Party can demonstrate the information was developed by or for it independently without the use of such information; or (vi) disclosure is required under applicable law or regulation.
8. FEES AND PAYMENT.
8.1. Service Fees. Service Fees for the Service for the Service Term will be set forth in the applicable Order Form.
8.2. Renewal Rates. The Service Fees for any Service Term which automatically renews pursuant to Section 5.2 will be at the prevailing commercial rate available to that Subscriber.
8.3. Payment. Unless set forth otherwise in the Order Form, all fees will be invoiced as incurred and will be payable within thirty (30) days of the date of the applicable invoice. ConstructConnect will submit all invoices to the attention of the recipient specified in the applicable Order Form. All payments will be made in U.S. dollars in accordance with instructions provided by ConstructConnect. Any amount not paid when due will accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. Credit card and bank debit payments will be processed and billed to Subscriber’s credit card or bank account (as the case may be). ConstructConnect may pre-authorize such charges with the credit card company or bank.
8.4. Reinstatement. If Subscriber allows a Service to lapse, either by notice to ConstructConnect or by non-payment, then Subscriber may reinstate such Service within twelve (12) months from the lapse date by paying a reinstatement fee to ConstructConnect equal to: (a) the Service Fees for the Service that otherwise would have been payable by Subscriber had the Service not lapsed and the applicable annual Service Fees in advance for the coming year, or on such other terms as the Parties may mutually agree.
8.5. Expenses. In addition to the foregoing, the Subscriber will reimburse ConstructConnect for all reasonable expenses incurred by ConstructConnect and approved by Subscriber (consistent with its expense policy) and as otherwise set forth in any Order Form.
8.6. Taxes. The fees and expenses in the Order Form do not include any federal, state, local or foreign taxes, duties, or levies of any nature. Any taxes required to be paid by ConstructConnect because of the Services provided to Subscriber, other than taxes based on ConstructConnect’s income, will be billed to and paid by Subscriber.
8.7. Disputes. Subscriber will notify ConstructConnect of any billing discrepancies within ninety (90) days after they first appear on Subscriber’s account statement, or it waives any right to dispute discrepancies. ConstructConnect may suspend its performance if any undisputed payment is past due; suspension will not relieve Subscriber of its obligation to pay in full. Subscriber will pay all costs of collecting overdue payments including reasonable attorneys’ fees and court costs.
9. WARRANTY AND DISCLAIMERS.
9.1. Limited Software Warranty. During the Service Term, ConstructConnect warrants: (a) the Service when used in a manner consistent with the Documentation (i) will provide all functionality and perform substantially as described in the Documentation; (ii) will be available as described elsewhere in this MSA; (iii) does not and will not infringe the intellectual property rights of any third party; (b) it will comply with all applicable laws and regulations; and (c) it will use commercially-reasonable efforts not to expose Subscriber, its Affiliated Users or their computing environments to any virus, malware, ransomware, malicious code, ‘back door,’ ‘Trojan Horse,’ ‘time-bomb,’ or other security vulnerability intended to harm, disable, freeze or enable unauthorized access to their computing environments or data. In the event of an alleged breach of this warranty, upon written notice from Subscriber ConstructConnect will remedy any issues in an expeditious and commercially reasonable manner reflective of the severity of the issue. This warranty will not apply to errors caused by the Service being: (a) used in a manner that conflicts with the Documentation or contrary to the specific written recommendation of ConstructConnect; (b) adapted, modified, altered or tampered with by anyone other than ConstructConnect or its authorized agents; (c) used in conjunction with any programs, hardware or other products not specified in the Documentation; or (d) combined with Subscriber or third party hardware, programs or other products contrary to the express, written recommendation of ConstructConnect. ConstructConnect’s failure to remedy timely a breach of the foregoing warranty will constitute a material breach of this MSA.
9.2. Service Warranty. ConstructConnect warrants that the Services and other services provided under this MSA will be provided by qualified personnel in a timely, professional, and workmanlike manner that meets or exceeds relevant industry standards. As Subscriber’s sole and exclusive remedy and ConstructConnect’s entire liability for any breach of the forgoing warranty. ConstructConnect will promptly re-perform the Services in question, at no additional cost to Subscriber, and if doing so fails to remedy such breach, Subscriber will be entitled to an equitable refund or offset of fees reflective of the severity of such breach and failure to cure.
9.3. Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION 9, NEITHER PARTY MAKES ANY OTHER WARRANTIES WHATSOEVER. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, ACCURACY OF INFORMATIONAL CONTENT AND SYSTEM INTEGRATION. CONSTRUCTCONNECT DOES NOT WARRANT THE OPERATION OF THE SERVICES TO BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICES WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE OR HARDWARE PRODUCTS OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. FURTHERMORE, CONSTRUCTCONNECT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE SERVICES OR THE RESULTS OBTAINED THEREFROM OR THAT THE SERVICES WILL SATISFY SUBSCRIBER’S REQUIREMENTS. CONSTRUCTCONNECT DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR ANY THIRD-PARTY PRODUCTS OR SERVICES IT DOES NOT SUPPLY OR RECOMMEND.
9.4. Subscriber Warranties. Subscriber, on behalf of itself, and its Affiliated Users, hereby represents and warrants to ConstructConnect that: (a) Subscriber has requisite rights and authority to use the Services and it will have, and will maintain, the irrevocable and unconditional right, power and authority to grant all applicable rights and licenses granted to ConstructConnect herein; (b) use by ConstructConnect and its affiliates, in accordance with this MSA, of Content, Contact Data, Product Data and Project Material provided will not infringe, misappropriate, or otherwise violate any intellectual property or other right of any person or entity; (c) Subscriber is responsible for its use of the Services; (d) Subscriber will notify ConstructConnect of any known unauthorized use of the Services; (e) Subscriber will use the Services (including, without limitation, all content and materials accessible via the Services) for lawful purposes only and subject to this MSA; (f) any information Subscriber submits to ConstructConnect is true, accurate, and correct; (g) Subscriber will not attempt to gain unauthorized access to the Site or the Services, other accounts, computer systems, or networks under the control or responsibility of ConstructConnect through hacking, cracking, password mining, or any other unauthorized means; and (h) if Subscriber is a direct competitor to ConstructConnect, Subscriber will disclose its status to ConstructConnect before accessing or using the Services and will only access or use the Services with ConstructConnect’s explicit, advance, written consent, and then only for the purposes authorized in writing.
10. LIMITATION OF LIABILITY.
10.1. No Remote Damages. IN NO EVENT WILL THE CONSTRUCTCONNECT OR SUBSCRIBER BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES FOR LOSS OF DATA, GOODWILL, BUSINESS INTERRUPTION OR THE LIKE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. CONSTRUCTCONNECT’S AGGREGATE LIABILITY TO SUBSCRIBER FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS MSA, INCLUDING FROM ANY AND ALL CLAIMS RELATED TO BREACH OF THIS MSA OR NONPERFORMANCE BY PROVIDER WILL NOT EXCEED THE GREATER OF THE AMOUNT OF TOTAL SERVICE FEES INVOICED BY CONSTRUCTCONNECT FOR THE SERVICE DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EARLIEST DATE ON WHICH THE EVENTS GIVING RISE TO THE LIABILITY OCCURRED OR $1,000. THE FOREGOING LIMITATIONS WILL APPLY REGARDLESS OF THE CAUSE OR THE FORM OF ACTION (WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE) AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES HEREUNDER BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMITATION ON AMOUNT.
10.3. Special Limitation. ConstructConnect is not a disaster recovery or backup service provider for the Subscriber Data or Contact Data and will not be liable for any expense or damage arising out of any erasure, damage or destruction of Subscriber Data or Contact Data. Subscriber will be responsible for ensuring its ongoing independent access to all Subscriber Data and Contact Data.
10.4. Cumulative Remedies. Except as otherwise expressly provided herein, all remedies provided for in this MSA will be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
10.5. Acknowledgement. Each Party acknowledges the limitation of liabilities and disclaimers contained herein constitute an agreed upon allocation of risk between the Parties, have been factored into ConstructConnect’s pricing and are an essential element of the bargain between the Parties.
11.1. By Subscriber. Subscriber will indemnify, defend and hold harmless ConstructConnect and its affiliates and Suppliers and their respective employees, directors, agents, licensors, representatives and contractors (collectively, “Covered ConstructConnect Parties”), against any loss, claim, judgment or expense, including reasonable attorneys’ fees, arising out of a third party’s claim: (a) that any of the Contact Data, Product Data, Project Material, or other content provided by Subscriber to ConstructConnect infringes, misappropriates or otherwise violates any intellectual property rights of any unrelated third party, (b) asserting a violation of law by Subscriber, or (c) of Subscriber’s grossly negligent, reckless or willful misconduct.
11.2. By ConstructConnect. ConstructConnect will indemnify, defend and hold harmless Subscriber, its affiliates, Affiliated Users and their respective employees, directors, agents, licensors, representatives and contractors (collectively, “Covered Subscriber Parties”), against any loss, claim, judgment or expense, including reasonable attorneys’ fees, arising out of a third party’s claim (a) that the Services or the use thereof infringe, misappropriate or otherwise violate the intellectual property rights of any unrelated third party, (b) asserting a violation of law by ConstructConnect, or (c) of ConstructConnect’s grossly negligent, reckless or willful misconduct.
11.3. Infringement Exclusions. An indemnifying Party will be relieved of its indemnification obligations for any claim under Section 11.2(a) hereunder (an “Infringement Claim”) which arises from or is alleged to arise from:
(a) a modification of the allegedly offending intellectual property, product, service, or materials by anyone other than the indemnifying Party; or
(b) the use of the allegedly offending intellectual property, product, service, or materials in combination with a third party’s products, service or materials not authorized or permitted by the indemnifying Party; or
(c) allegedly offending intellectual property, products, services, or materials which were delivered pursuant to the indemnified Party’s express requirements; or
(d) the indemnified Party’s use of the allegedly offending intellectual property, products, services, or materials in a manner expressly prohibited by the indemnifying Party.
11.4. Infringement Remedies. For any Infringement Claim, the indemnifying Party will, at its sole option and expense, have the right to:
(a) procure for indemnified Party the right to continue the use of the allegedly offending product, service, or material without interruption, or
(b) replace or modify the allegedly offending product, service, or material to make its use non-infringing while being substantially capable of performing the same function, or
(c) accept return of the allegedly offending product, service, or material, and refund the purchase price of or applicable fees for the allegedly offending product, service or material.
11.5. Requirements. Any indemnification obligation arising under this Section 11 will be subject to the following requirements:
(a) the indemnified Party promptly provides the indemnifying Party written notification of the assertion of any claim; and
(b) the indemnified Party provides reasonable support in aiding the indemnifying Party in any defense to a claim, at the indemnifying Party’s cost; and
(c) the indemnifying Party has sole control over the defense or settlement of any claim.
12.1. Publicity. Subject to Subscriber’s advance review and express, written approval, ConstructConnect (or the Parties jointly) may issue a press release generally referencing this MSA and thereafter, subject to Subscriber’s further written approval, ConstructConnect, and its affiliates, may reference its Subscriber relationship with the Subscriber in certain documents distributed in connection with any financing transactions and certain marketing documents.
12.2. U.S. Government Restricted Rights. The Services and the accompanying Documentation are “commercial items” as that term is defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 CFR 12.212. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1, 227.7202-3 and 227.7202-4, all U.S. Government End Users acquire the Services with only those restricted or limited rights conveyed under the license customarily provided to the public (i.e., as set forth herein).
12.3. Assignment. Neither Party will assign this MSA or any rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s express prior written consent, not to be unreasonably withheld. Any assignment in violation of this section will be void. Subject to the foregoing, this MSA will be binding upon, and inure to the benefit of, each Party’s permitted successors and assigns.
12.4. Notices. All notices or approvals required or permitted hereunder will be in writing and will be deemed to have been given upon: (a) receipt if sent by certified or registered mail, postage prepaid, return receipt requested; (b) delivery if sent by a courier service that confirms delivery in writing; or (c) the date sent by email, with a confirmation copy sent via national overnight courier, in each case addressed as follows: (x) if to Subscriber, then to the address set forth on the first page of this MSA; or (y) if to ConstructConnect, then to ConstructConnect, Inc., Rookwood Exchange, 3825 Edwards Rd #800 Cincinnati, OH 45209, Attn: Chief Executive Officer. Either Party may change its address for such communications by giving notice thereof to the other Party in conformity with this Section.
12.5. Independent Parties, No Authority to Bind. The relationship of ConstructConnect and Subscriber is that of independent contractors. Neither Party nor their employees are agents, employees, or joint venturers of the other Party. Neither Party will have any authority to bind the other Party to any obligation by contract or otherwise.
12.6. Severability, No Waiver. If any provision of this MSA will be deemed invalid or unenforceable, in whole or in part, this MSA will be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable and, insofar as possible, consistent with the original intent of the Parties. The failure of a Party to require performance of any obligations of the other Party hereunder will not be deemed a waiver and will not affect its right to enforce any provision of this MSA at a subsequent time.
12.7. Third Party Beneficiaries. No provisions of this MSA are intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party under this MSA, except (a) Affiliated Users; (b) ConstructConnect’s affiliates and Suppliers will be deemed third party beneficiaries under this MSA for purpose of enforcing their rights in their respective intellectual property rights and Confidential Information, and (c) with respect to the Parties’ indemnification rights and obligations under Section 11.
12.8. Construction, Headings. Titles and headings to sections in this MSA are inserted for convenience of reference only and are not intended to affect the interpretation or construction of this MSA. The terms “herein,” “hereof,” “hereunder” and similar expressions refer to this MSA and not to any section or other portion hereof. Any use of the term “including” in this MSA will be construed as if followed by the phrase “without limitation.”
12.9. Amendment. ConstructConnect may unilaterally amend or modify this MSA and any other policies it publishes from time to time. If ConstructConnect makes material changes to these documents, ConstructConnect will provide Subscriber with the opportunity to review the changes before they become effective. Changes to policies will not be retroactive. Your continued use of the Services after we publish or send a notice about our changes to this MSA, or our policies constitutes consent to the updated terms as of their effective date.
12.10. Force Majeure. Neither Party will be held liable to the other Party for failure of performance due to circumstances beyond such Party’s reasonable control, including acts of God, war, terrorism, strikes or labor disputes, civil disturbances or interruptions in power, communications, transportation or the like, but only for so long as and to the extent such circumstances render such Party’s performance impracticable and provided further if such failure of performance persists for more than thirty (30) days, the other Party will be entitled to terminate this MSA without further obligation on its part.
12.11. Resolving Disputes. In the event of any dispute between the Parties regarding this MSA and prior to initiating any legal action in connection therewith (except for an action for injunctive relief to avoid or mitigate an immediate, irreparable harm, such as, e.g., to protect Confidential Information), the Parties agree that representatives of each (i.e., the respective ‘relationship managers’ or other comparable principals) will promptly meet and confer in the spirit of good faith and fair dealing to attempt to equitably resolve such dispute. If, after an earnest effort, they are unable to do so (i.e., within five (5) days after such meeting), either Party may, by written notice to the other Party, escalate the dispute to more senior leadership of the Parties (including their respective CEOs), who agree to meet, in person or telephonically, and confer in the spirit of good faith and fair dealing to attempt to equitably resolve such dispute. If, after an earnest effort by such individuals, the Parties remain unable to resolve such dispute (i.e., within ten (10) business days after such second meeting), each Party may proceed in such fashion as it deems appropriate to address such dispute (including initiating legal action).
12.12. Governing Law, Venue. This MSA will be governed in accordance with and interpreted under the laws of the State of Ohio without giving effect to its choice of law provisions. Without limiting either Party’s obligations toward alternative dispute resolution, and subject to the foregoing provision on resolving disputes in Section 13.13, any action, suit, or other proceeding brought by either Party against the other Party will be brought in a State or Superior court or the United States District Court of competent jurisdiction in Hamilton County, Ohio. Both Parties hereby submit to the exclusive jurisdiction of such courts and waive any objection to jurisdiction or venue in any such proceeding. The provisions of U.C.I.T.A. will not apply to this MSA or any Order Form hereunder.
12.15. Compliance. The Parties will comply with all laws, ordinances, and regulations in their performance of this MSA, including use of the Services. The parties understand some of the materials exchanged pursuant to this agreement may contain technology subject to export controls. Neither party will export any materials governed by this MSA from the United States in violation of export control laws.
12.16. Government Rights. If used or acquired by the United States Government, the Government acknowledges that:(a) rights granted herein constitute “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable and (b) the Government’s rights are limited to those specifically granted pursuant to this MSA.