BuildPulse Terms of Service
Last Updated: February 17, 2023
These Terms of Service (“Agreement”) constitute a contract between BuildPulse LLC (“BuildPulse”), and you (“Customer”). Customer agrees to be bound by the terms of this Agreement upon the earlier of: (a) its download, installation, access to or use of any of BuildPulse’s software or services (including the Services); or (b) its express consent to this Agreement (“Effective Date”). This Agreement includes and incorporates any Order Form under which Customer purchased any of BuildPulse’s software or services. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have proper authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with these terms and conditions, you may not use any BuildPulse software or services. In the event of any inconsistency or conflict between this Agreement and any Order Form, the Order Form will control.
1. Definitions
Any terms not defined in this Section shall have the meaning ascribed to them in their relevant Section.
“Applicable Law” means all laws, statutes, ordinances, regulations and other types of government directives applicable to the access, use or provision of the Services.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential considering the nature of the information and the circumstances surrounding disclosure, including all Order Forms, Customer Data, and all non-public business, technology, product, roadmap, financial, pricing, and marketing information. Notwithstanding the foregoing, Confidential Information will not include any information which: (a) is or becomes generally available to the public without breach of any obligation owed to the disclosing party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means any written instructions, technical documentation, manuals and other materials made available by BuildPulse related to the Services, which BuildPulse may modify from time to time.
“Installed Software” means any software provided by BuildPulse to be installed by Customer or its Authorized Users solely for use with the Services.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, service mark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Order Form” means an online or written quote, order form or other writing prepared by BuildPulse, executed by Customer, and accepted by BuildPulse that sets forth the specific Services that Customer is authorized to use and the applicable fees, volumes, payment schedule and initial subscription term. If Customer subscribes through a reseller or marketplace, then such reseller or marketplace’s applicable ordering document shall apply solely with respect to the fees, volumes, subscription term and Services ordered.
“Services” means any BuildPulse products and services made available to Customer hereunder, including: (a) the BuildPulse proprietary software, including any software code, utility, application interface, tools, or services related thereto; (b) the Installed Software; (c) any open-source software used by BuildPulse in support of the products and services; (d) the Documentation; and (e) any updates, upgrades, enhancements, improvements, derivative works, and modifications of the foregoing, including the general know-how, performance metrics, analytics and machine learning developed over time.
“Term” means the period of time during which BuildPulse has authorized Customer to access the Services as set forth in any applicable Order Form and subsequent Renewal Term(s).
2. Services and Responsibilities
2.1 Provision of BuildPulse Platform.
BuildPulse hereby grants Customer and its
authorized employees, contractors, vendors and consultants (“Authorized Users”) a
limited non-exclusive, non-sublicensable, non-transferable: (a) right to access and use
the Services; and (b) if applicable, license to install and use the Installed Software solely
in object code form, in each case solely for Customer’s internal business purposes and
subject to the terms and conditions of this Agreement. Usernames and passwords to
the Services may not be shared or accessed by more than one unique Authorized User.
The Services are subject to modification from time to time at BuildPulse’s sole
discretion, provided the modifications do not materially diminish the functionality of the
Services.
2.2 Data Protection.
BuildPulse maintains a commercially reasonable security program
that is designed to: (a) ensure the security and integrity of Customer data provided by or
on behalf of Customer to BuildPulse in connection with the Services (“Customer Data”);
(b) protect against threats or hazards to the security or integrity of Customer Data; and
(c) prevent unauthorized access to Customer Data. Solely if and to the extent
BuildPulse processes Customer personal data (as defined in the DPA) that is subject to
the GDPR, the GDPR Data Processing Addendum provided
at https://buildpulse.io/dpa (“DPA”) is hereby incorporated into, and shall be fully
governed by, this Agreement. Solely if and to the extent BuildPulse processes
Customer Personal Information (as defined in the CCPA Addendum) that is subject to
the CCPA, the CCPA Addendum provided on https://buildpulse.io/ccpa is hereby
incorporated into, and shall be fully governed by, this Agreement.
2.3 Restrictions.
Customer will not, and shall ensure that any Authorized Users will not,
directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, copy, create
derivative works of or otherwise create, attempt to create or derive the source code,
object code or underlying structures, ideas or algorithms of the Services or any data
related thereto; (b) attempt to probe, scan or test the vulnerability of the Services,
breach the security or authentication measures of the Services without proper
authorization, or render any part of the Services unusable; (c) use or access the
Services to develop a product or service that is competitive with BuildPulse’s products
or services or engage in competitive benchmarking; (d) share, transfer, distribute, resell,
lease, license, sublicense, make available or otherwise offer the Services on a
standalone basis; (e) remove any proprietary notices from the Services or related
Documentation; (f) provide any infringing, offensive, fraudulent or unlawful content in
connection with the Services; (g) use the Services or related Documentation in any
manner or for any purpose that violates this Agreement or Applicable Law, or infringes,
misappropriates, or otherwise violates any Intellectual Property Right or other right of
any person (collectively, the “Restrictions”).
2.4 Privacy and Data Rights.
All Customer Data collected through the Services is
subject to the privacy policy located at https://buildpulse.io/privacy. Customer
acknowledges and agrees that the Services will require Authorized Users to share with
BuildPulse certain information which may include personal data regarding Authorized [{{type}} Annotation]
Users (such as names, usernames, hashed passwords, email address and/or online
identifiers) solely for the purposes of providing and improving the Services. Prior to
providing any personal information to the Services, Customer is fully responsible for
obtaining the consent of the associated individual, in accordance with Applicable Law,
to the use of his/her information by BuildPulse in accordance with this Agreement.
Customer represents and warrants that it has all rights necessary, including any
consents required hereunder or by Applicable Law, to provide or make available the
Customer Data (including personal data) or other materials in connection with its use of
the Services, and to permit BuildPulse to use the same as contemplated hereunder.
Customer will not use the Services to transmit or provide to BuildPulse any financial or
medical information of any nature, or any sensitive personal data (such as social
security numbers, driver’s license numbers, birth dates, personal bank account
numbers, passport or visa numbers, or credit card numbers).
2.5 Suspension.
BuildPulse reserves the right to suspend Customer’s (or any
Authorized User’s) access to the Services immediately: (a) if Customer breaches
Section 2 or Section 4 of this Agreement, or breaches any other provision and fails to
correct that breach within the applicable cure period; or (b) as it deems reasonably
necessary to respond to any actual or potential security or availability concern that may
affect BuildPulse or its customers or users.
2.6 Customer Responsibilities.
Customer is solely responsible for: (a) all uses of the
Services under its account (whether or not authorized); (b) all acts and omissions of
Authorized Users, including ensuring that it and its Authorized Users only use the
Services in compliance with this Agreement and all Applicable Law (any breach of this
Agreement by an Authorized User shall be deemed a breach by Customer); (c) the
entry, accuracy, integrity and legality of Customer Data and the means by which it
acquires and uses such Customer Data; (d) using commercially reasonable efforts to
prevent unauthorized access to or use of the Services (and promptly notifying
BuildPulse in the event of any such unauthorized access or use); and (e) determining
whether the Services are suitable or sufficient for its business purposes. BuildPulse’s
relationship is with Customer and not individual Authorized Users or third parties using
the Services through Customer, and Customer will address all claims raised by its
Authorized Users directly with BuildPulse.
2.7 Third-Party Services.
Customer’s use of third-party products or services that are
not licensed to Customer directly by BuildPulse (“Third-Party Services”) shall be
governed solely by the terms and conditions applicable to such Third-Party Services, as
agreed to between Customer and the third party. BuildPulse does not endorse or
support, is not responsible for, and disclaims all liability with respect to Third-Party
Services, including the privacy practices, data security processes and other policies
related to Third-Party Services. Customer agrees to waive any claim against BuildPulse
with respect to any Third-Party Services. Customer may enable integrations between
the Services and Third-Party Services (each, an “Integration”). By enabling an
Integration between the Services and its Third-Party Services, Customer is instructing
BuildPulse to share the Customer Data necessary to facilitate the Integration. Customer
is responsible for providing all instructions to any Third-Party Service provider relating to
Customer Data. BuildPulse and Third-Party Service providers are not sub-processors of
each other.
3. Fees
3.1 Fees.
Customer shall pay all amounts invoiced by BuildPulse relating to any
applicable Order Form, according to the payment schedule set forth therein. Except as
otherwise specified herein or in any applicable Order Form: (a) fees are quoted and
payable in United States dollars; and (b) payment obligations are non-cancelable and
non-pro-ratable for partial months, and fees paid are non-refundable. BuildPulse
reserves the right to change the fees or applicable charges and to institute new charges
and fees at the end of the initial term, or then current renewal term, upon forty-five (45)
days (fifteen (15) days if the then-current term is one (1) month) prior notice to
Customer (which may be sent by email). Customer may enter into a subscription for the
Services through a BuildPulse authorized reseller, in which case Customer shall pay all
fees to the applicable reseller, and any amounts to which Customer may be entitled due
to a breach of this Agreement will be provided through such reseller.
3.2 Late Payment.
BuildPulse may suspend access to the Services immediately upon
notice if Customer fails to pay any amounts hereunder at least fifteen (15) days past the
applicable due date.
3.3 Taxes.
All amounts payable hereunder are exclusive of any taxes, including any
direct or indirect local, state, federal or foreign taxes, levies, duties or similar
government assessments of any nature (such as VAT, GST, excise, sales, use or
withholding taxes) (collectively “Taxes”). Customer will be solely responsible for
payment and reimbursement of all Taxes associated with its purchases hereunder,
except for taxes based on BuildPulse’s net income. Customer will not withhold any
taxes from any amounts due hereunder.
4. Confidential Information and Proprietary Rights
4.1 Proprietary Rights.
Except as expressly set forth herein, BuildPulse (and its
licensors, where applicable) exclusively retains all right, title and interest (including all
Intellectual Property Rights) relating to the Services and BuildPulse Confidential
Information, and Customer exclusively retains all right, title and interest (including all
Intellectual Property Rights) in its Customer Data and Confidential Information.
4.2 Feedback.
Customer may from time to time provide BuildPulse suggestions or
comments for enhancements or improvements, new features or functionality or other
feedback (“Feedback”) with respect to the Services. BuildPulse will have full discretion
to determine whether to proceed with the development of any requested enhancements,
new features or functionality. BuildPulse will have the full, unencumbered right, without
any obligation to compensate or reimburse Customer, to use, incorporate and otherwise
fully exploit any such Feedback in connection with its products and services.
4.3 Confidential Information.
Each party agrees that it will use the Confidential
Information of the other party solely in accordance with the provisions of this Agreement
and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any
third party without the other party’s prior written consent, except as otherwise permitted
hereunder. Notwithstanding the foregoing, either party may disclose Confidential
Information: (a) to its employees, officers, directors, attorneys, auditors, financial
advisors, contractors, and other representatives who have a need to know and are
legally bound to keep such information confidential by confidentiality obligations
consistent with those of this Agreement (and for whom each party is responsible for any
breach of this Agreement); and (b) as required by law (in which case, to the extent
legally permitted, the receiving party will limit the disclosure to that required by law and
provide the disclosing party with prior written notification thereof in order to allow
disclosing party the opportunity to contest such disclosure). Receiving party agrees to
use the same degree of care that it uses to protect its own confidential and proprietary
information to prevent the unauthorized use or disclosure of disclosing party’s
Confidential Information, but in no event less than a reasonable degree of care.
Promptly after disclosing party’s request, receiving party agrees to return or destroy
disclosing party’s Confidential Information; provided, however, that receiving party shall
be entitled to retain copies of Confidential Information solely to the extent necessary for
purposes of such party’s ordinary course records retention and backup policies and
procedures, or to comply with Applicable Law, provided that such Confidential
Information is treated as such for so long as it is retained. Each party acknowledges the
irreparable harm that improper disclosure of Confidential Information may cause;
therefore, the injured party will be entitled to seek immediate injunctive and other
equitable relief, in addition to all other remedies, for any violation or threatened violation
of this Section or Section 2.3 “Restrictions.”
4.4 Performance Metrics and Machine Learning.
Customer acknowledges that a
fundamental component of the Services is the use of machine learning and
performance metrics for the purpose of providing and improving BuildPulse’s products
and services. Notwithstanding anything to the contrary, BuildPulse may collect, use,
aggregate, de-identify and/or anonymize (during and after the Term) information related
to Customer’s use of the Services to train its algorithms through machine learning
techniques, monitor performance, create analytics and statistical data, or for any other
purpose permitted by Applicable Law.
5. Warranties and Disclaimers
5.1 BuildPulse Warranties.
BuildPulse represents and warrants that: (a) the Services
will, under normal and authorized use in full compliance with this Agreement, perform
materially in accordance with the Documentation; and (b) it will not knowingly include, in
the Services provided to Customer hereunder, any computer code or other computer
instructions, devices or techniques, including those known as viruses, disabling devices,
trojans, or time bombs, designed to intentionally disrupt, disable, harm, or infect the
operation of a network, computer program or computer system or any component
thereof, including Customer Data. If, at any time, the Services do not conform to the
warranty set forth in this Section 5.1, Customer may promptly notify BuildPulse in writing
of any such noncompliance and BuildPulse will, within 30 days of receipt of such
notification, either correct the noncompliance or provide Customer with a plan for
correcting the noncompliance. If the noncompliance is not corrected or if a reasonably
acceptable correction plan is not established during such period, Customer may
terminate this Agreement and receive a pro-rata refund of any pre-paid subscription
fees related to the terminated portion of the applicable Order Form(s) as its sole and
exclusive remedy for such noncompliance.
5.2 Reciprocal Warranties.
Each party represents and warrants to the other party that
it has the legal power and authority to enter into this Agreement.
5.3 DISCLAIMERS.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION 5, THE
SERVICES AND ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS
AGREEMENT IS PROVIDED TO CUSTOMER STRICTLY “AS IS” AND “AS
AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, INCLUDING ANY
WARRANTIES THAT THE SERVICES WILL OPERATE ERROR-FREE OR WITHOUT
INTERRUPTION, OR BE FREE OF SECURITY DEFECTS. ALL CONDITIONS,
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-
INFRINGEMENT, ARE HEREBY DISCLAIMED BY BUILDPULSE TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES AGREE THAT THE
SERVICES DO NOT CONSTITUTE LEGAL ADVICE AND ARE ONLY INTENDED AS
TOOLS FOR ASSISTING CUSTOMER IN ITS COMPLIANCE EFFORTS, FOR WHICH
CUSTOMER IS SOLELY RESPONSIBLE, AND BUILDPULSE WILL HAVE NO
LIABILITY OR RESPONSIBILITY WHATSOEVER FOR CUSTOMER’S COMPLIANCE
PROGRAMS.
5.4 BETA PRODUCTS.
FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION
TO USE FREE OR BETA PRODUCTS, FEATURES OR DOCUMENTATION
(COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY BUILDPULSE. BETA
PRODUCTS MAY NOT BE GENERALLY AVAILABLE, ARE PROVIDED STRICTLY
“AS IS,” AND SHALL NOT BE SUBJECT TO ANY REPRESENTATIONS,
WARRANTIES, INDEMNIFICATION OBLIGATIONS OR SUPPORT OBLIGATIONS,
AND UNLESS PROHIBITED BY LAW, BUILDPULSE WILL HAVE NO LIABILITY
RELATED TO SUCH BETA PRODUCTS IN EXCESS OF $1,000.00. CUSTOMER OR
BUILDPULSE MAY TERMINATE CUSTOMER’S ACCESS TO BETA PRODUCTS AT
ANY TIME FOR ANY OR NO REASON.
6. Indemnification
6.1 Indemnification by BuildPulse.
BuildPulse will defend Customer against any
claims, actions, demands or proceedings (“Claim”) made or brought against Customer
by an unaffiliated third party alleging that the use of the Services as permitted
hereunder infringes any US-registered third party trademark or patent, and will
indemnify Customer for any damages (including reasonable attorney’s fees) finally
awarded by a court of competent jurisdiction against Customer, or agreed upon in
settlement by BuildPulse, in connection with any such Claim. Notwithstanding the
foregoing, BuildPulse shall have no obligation or liability for any Claim of infringement to
the extent that it arises out of or relates to: (a) Third-Party Services, Customer Data, or
Customer designs, guidelines or specifications; (b) modifications made other than by
BuildPulse; (c) combination of the Services with a non-BuildPulse application, product,
data or business process, where the Services would not be infringing alone; (d)
continued use of the Services after Customer has been notified of modifications or
substitutes, to the extent use of such modifications or substitutes would have prevented
the Claim; or © use of the Services in a manner not strictly in accordance with this
Agreement and all related Documentation (clauses (a) throu©(e), “Excluded Claims”).
If the use of the Services by Customer has become, or in BuildPulse’s opinion is likely
to become, the subject of any Claim of infringement, BuildPulse may at its sole option
and expense: (i) procure for Customer the right to continue using and receiving the
Services as set forth hereunder; (ii) replace or modify the Services to make them non-
infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not
commercially practicable, terminate this Agreement solely with respect to the infringing
portion of the Services and provide a pro-rata refund of any pre-paid subscription fees
related to the terminated portion of the applicable Order Form(s). This Section states
BuildPulse’s sole and exclusive liability and obligation, and Customer’s exclusive
remedy, for any Claim of any nature related to infringement or misappropriation of
Intellectual Property Rights.
6.2 Indemnification by Customer.
Customer will defend BuildPulse and its officers,
directors, employees and agents against any Claim made or brought against BuildPulse
by a third party relating to the Excluded Claims or Customer’s breach of Section 2
“Services and Responsibilities” or Section 4 “Confidential Information and Proprietary
Rights” and Customer will indemnify BuildPulse and its officers, directors, employees
and agents for any damages finally awarded against BuildPulse (or any settlement
approved by Customer) in connection with any such Claim.
6.3 Indemnification Procedures.
The party entitled to seek coverage pursuant to this
Section 6 (the “Indemnified Party”) shall: (a) promptly notify the other party obligated to
provide such indemnification (the “Indemnifying Party”) in writing of any such Claim; (b)
give sole control of the defense and settlement of any such Claim to the Indemnifying
Party (provided that Indemnifying Party may not settle any Claim in a manner that
adversely affects Indemnified Party’s rights, imposes any obligation or liability on the
Indemnified Party or admits liability or wrongdoing on the part of Indemnified Party, in
each case, without Indemnified Party’s prior written consent); and (c) provide all
information and assistance reasonably requested by the Indemnifying Party, at the
Indemnifying Party’s expense, in defending or settling such Clam. The Indemnified
Party may join in defense with counsel of its choice at its own expense.
7. Limitation of Liability
EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR CUSTOMER’S
BREACH OF SECTION 2 “SERVICES AND RESPONSIBILITIES,” SECTION 3 “FEES,”
OR SECTION 4 “ CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS,” IN
NO EVENT SHALL EITHER PARTY BE LIABLE FOR: (A) ANY LOST PROFITS OR
REVENUE, LOSS OR CORRUPTION OF DATA, OR FOR ANY INDIRECT, SPECIAL,
COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING
UNDER THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE
OTHERWISE FORESEEABLE; OR (B) ANY AGGREGATE LIABILITY ARISING OUT
OF OR RELATED TO THIS AGREEMENT IN EXCESS OF THE TOTAL AMOUNTS
PAID OR PAYABLE TO BUILDPULSE UNDER THE ORDER FORM GIVING RISE TO
LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENT FIRST GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMERS
SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE
LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL APPLY NOTWITHSTANDING
THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND
REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH CLAIMS ARE
BROUGHT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE).
8. Termination
8.1 Term.
The Term of this Agreement begins on the Effective Date and continues until
all Order Forms have expired or been terminated. Except as set forth in an applicable
Order Form, the subscription term of such Order Form will automatically renew for
successive renewal terms equal to the length of the subscription term on the initial
Order Form (“Renewal Term”), unless either party provides the other party with written
notice of non-renewal at least thirty (30) days (fifteen (15) days if the then-current term
is one (1) month) prior to the end of the then-current term.
8.2 Termination.
Each party may terminate this Agreement or an applicable Order
Form upon written notice to the other party in the event the other party commits any
material breach of this Agreement or the applicable Order Form and fails to cure such
breach within thirty (30) days after receipt of notice of such breach.
8.3 Survival.
Upon termination of this Agreement all rights and obligations will
immediately terminate except that any terms or conditions that by their nature should
survive such termination will survive, including the Restrictions and terms and
conditions relating to confidential information and proprietary rights, disclaimers,
indemnification, limitations of liability, termination and the general provisions below.
9. General
9.1 Export Compliance.
Each party will comply with the export laws and regulations of
the United States, European Union and other applicable jurisdictions in providing and
using the Services. Customer may not export, re-export or otherwise access the [{{type}} Annotation]
Services in violation of Applicable Law, including access or use in any embargoed
country or other jurisdiction where such access or use is prohibited. Each party
represents that it is not named on any U.S. government denied-party list.
9.2 Publicity.
Customer agrees that BuildPulse may refer to Customer’s name and
trademarks in BuildPulse’s marketing materials and website; however, BuildPulse will
not use Customer’s name or trademarks in any other publicity (e.g., press releases,
customer references and case studies) without Customer’s prior written consent (which
may be by email).
9.3 Assignment.
Neither party hereto may assign or otherwise transfer this Agreement,
in whole or in part, without the other party’s prior written consent, except that either
party may assign this Agreement without consent to a successor to all or substantially
all of its assets or business related to this Agreement. Any attempted assignment,
delegation, or transfer by either party in violation hereof will be null and void. Subject to
the foregoing, this Agreement will be binding on the parties and their successors and
assigns.
9.4 Relationship.
The parties are independent contractors, and nothing contained
herein will in any way constitute any association, partnership, agency, employment or
joint venture between the parties hereto, or be construed to evidence the intention of the
parties to establish any such relationship. Neither party will have the authority to
obligate or bind the other in any manner outside the scope of this Agreement.
9.5 Third-Party Beneficiaries.
By accessing the Services, Customer expressly agrees
that BuildPulse shall have the benefit of and right to enforce this Agreement against
Customer, irrespective of Customer’s agreements with any authorized reseller. Except
for BuildPulse’s own benefit, nothing in this Agreement shall confer, or is intended to
confer, on any third party any benefit or the right to enforce or modify any term of this
Agreement.
9.6 Severability.
If a court of competent jurisdiction determines that any provision of
this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be
enforced as nearly as possible in accordance with the stated intention of the parties,
while the remainder of this Agreement will remain in full force and effect and bind the
parties according to its terms.
9.7 Governing Law; Compliance.
This Agreement is governed by and construed in
accordance with the laws of the State of California and the federal U.S. laws applicable
therein, excluding its conflicts of law provisions. For purposes of any dispute or claim
related to this Agreement, Customer and BuildPulse agree to submit to the personal
and exclusive jurisdiction of the courts located in San Francisco County, California. The
parties agree that the United Nations Convention on Contracts for the International Sale
of Goods will not apply to this Agreement. Each party will comply with all Applicable
Law.
9.8 Notices.
Any notice required or permitted to be given hereunder will be given in
writing by personal delivery, certified mail, return receipt requested, or by overnight
delivery. BuildPulse may provide notice using the information provided in the most
recent Order Form and Customer may provide notice using the contact information
provided on buildpulse.io. Notices regarding the Services in general may be given by
electronic mail to Customer’s email address on record with BuildPulse.
9.9 Entire Agreement.
This Agreement and any Order Form(s) constitutes the entire
agreement of the parties concerning its subject matter and is intended to be the final
expression of their Agreement, and supersede all prior and contemporaneous
agreements, proposals, or representations, whether written or oral. No failure or delay in
exercising any right hereunder shall constitute a waiver of such right. No amendment or
waiver of any provision of this Agreement or any Order Form shall be effective unless in
writing and signed by an authorized representative of Customer and BuildPulse and will
only be given effect as to the specific provision and circumstances for which it was
given. Notwithstanding the foregoing, no force or effect shall be given to any different or
additional terms contained in any purchase order or other vendor form issued by
Customer, even if signed by BuildPulse after the date hereof. In the event of any conflict
between this Agreement and any applicable DPA or CCPA Addendum, the DPA and/or
CCPA Addendum will govern.
9.10 U.S. Government Use.
The Services are commercial computer software as
defined in FAR 2.101. Any related documentation, technical data, or services are also
commercial. In accordance with FAR 12.212 and DFARS 227.7202, all rights conferred
in the Services, related documentation, technical data, or any deliverable to the United
States Government are specified solely in this Agreement. All other uses are prohibited
and no ownership rights are conferred.
9.11 Force Majeure.
Any delay or failure in the performance of any duties or obligations
of either party (except the payment of money owed) will not be considered a breach of
this Agreement if such delay or failure is due to a labor dispute, fire, earthquake, flood,
cyber-attack, war, or any other event beyond the reasonable control of a party, provided
that such party promptly notifies the other party thereof and uses commercially
reasonable efforts to resume performance as soon as possible.
9.12 Anti-Corruption.
Customer agrees that it has not received or been offered any
illegal or improper bribe, kickback, payment, gift, or thing of value from any BuildPulse
employee or agent in connection with this Agreement. If Customer learns of any
violation of the above restriction, Customer will promptly notify BuildPulse.
9.13 Interpretation.
For purposes hereof, “including” or “such as” means “including without limitation.”