Terms of Sale
This Terms of Sale Agreement ("Agreement") is entered into by Construction Software Technologies, Inc. a Delaware corporation, dba iSqFtÂ® and hereinafter referred to as (âiSqFtâ), having its principal place of business at 4500 Lake Forest Drive, Suite 502, Blue Ash, Ohio 45242, and you, the âSubscriberâ. The term "Subscriber" refers to the person or entity who has made agreed-upon payments to iSqFt with the intention of using a Website owned by iSqFt and their associated business entity. The effective date of this Agreement ("Effective Date") shall be the date upon which iSqFt receives payment (in whole or in part) for Product. A link to this Agreement is provided on the Website so that Subscriber may review this Agreement at any time.
2.1 "AGC" means The Associated General Contractors of America.
2.3 "Content" means all indexes, Drawings (including, but not limited to drawings of works (plans) in the public domain, and derivative works therefrom), text (including, but not limited to, typed text of specifications in the public domain and derivative works therefrom), graphics, photographs, animations, scripts, icons, audio, data, project location, project details, bid date and bidders, and all other non-Software components of the Product.
2.4 "Drawings" means any plans, blueprints, drawings, documentation, specifications, and related design information.
2.5 "Owner" means the person or legal entity which holds legal title and rights to the Drawings.
2.6 "Product" means Content, Software on the Website, Toolbox2 take-off tool and Private Construction Office or any portion thereof, which are, in part, accessible on the Website.
2.7 "Software" means all computer code (both source and object), applets, interfaces, commands, syntax and expressions of ideas that operate, cause, create, direct, manipulate, access or otherwise affect the Content in the Product, whether created by iSqFt or licensed from third parties.
2.8 "Website" means the website and all subsequent pages located at http://www.isqft.com or another uniform resource locator that iSqFt might designate.
4. Applicable Terms
4.2 Subscriber's oral request for the Product shall be binding on Subscriber and deemed by iSqFt as a valid Subscriber purchase order, governed by these terms and conditions. Subscriber further agrees, as a result of any request made hereunder, to pay any and all charges associated with the purchase of the Product.
5. Subscriber Responsibilities
5.1 Subscriber acknowledges that the Product contains trade secrets of iSqFt and its licensors, and, in order to protect such trade secrets and other interests that iSqFt and its licensors may have in the Product, Subscriber agrees not to disassemble, decompile or reverse engineer any portion of the Product nor permit any third party to do so.
5.2 Subscriber is responsible for (a) acquiring, installing, and maintaining computer equipment and computer software programs at its premises compatible with and as necessary to use the Product, (b) obtaining access to the Internet, and (c) downloading from Website and installing any necessary plug-ins. All fees associated with these items are the responsibility of the Subscriber.
6. Fees and Payment
6.1 Subscriber agrees that all fees paid are based on services purchased and not on actual usage.
6.2 Subscriber agrees to pay all fees at the rates based on iSqFt's published fees in effect when the charges were incurred, unless otherwise set forth in an iSqFt quotation or proposal. A quotation or proposal is valid for a period of seven (7) days from the date of issue. Errors and omissions in the fees are subject to correction by iSqFt.
6.3 Subscriber shall pay iSqFt all applicable fees due for the Product provided pursuant to this Agreement, in accordance with the terms of this Agreement. All amounts due under this Agreement shall be paid in currency of the United States in accordance with an iSqFt quotation, proposal or renewal invoice to the address so designated. If Subscriber chooses to pay fees due with a credit card, Subscriber agrees to provide iSqFt with valid and updated credit card information and hereby authorizes iSqFt to charge such credit for all Products purchased for the initial subscription term and any renewal subscription period. Such charges shall be made in advance, either annually or in accordance with a specific billing frequency previously agreed-upon in writing.
6.4 Subscriber shall provide written notice of any dispute within thirty (30) days from the date of initial payment for Product. If any non-disputed amounts are not paid by the applicable due date, iSqFt may at its sole discretion assess a late fee, calculated from the original due date, equal to the lesser of (i) one and one-half percent (1.5%) per month, or (ii) the maximum late fee permitted by applicable law, whichever is lower, and/or iSqFt may condition future subscription renewals on payment terms shorter than those specified in this Section. Except as otherwise expressly provided, all payments made to iSqFt are non-refundable. Subscriber shall reimburse iSqFt for reasonable collection costs, including attorneys' fees, incurred in seeking payment for a past due amount.
6.5 If any amount owed by Subscriber under this or any other agreement for Product is 30 or more days overdue (or 10 or more days overdue in the case of amounts authorized by Subscriber to charge its credit card), iSqFt may, without limiting its other rights and remedies, accelerate any remaining unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend access to Product until such amounts are paid in full.
6.6 All fees are exclusive of applicable federal, state, or local sales, use or withholding, ad valorem, personal property, or value added taxes, or other taxes, assessments or fees not based upon the income of iSqFt (collectively, âTaxesâ). Subscriber shall pay to the appropriate governmental authority, any and all such taxes, assessments or other charges of any kind that may be imposed on iSqFt or Subscriber by any governmental authority as a result of Product provided under this Agreement. If Subscriber claims tax-exempt status for any purpose in connection with this Agreement, Subscriber will provide iSqFt upon request with a valid tax exemption certification authorized by the appropriate taxing authority.
7. Term, Termination and Renewal
7.1 Subscriber fees are based on annual periods, or in accordance with a specific renewal frequency previously agreed-upon in writing, that begin on the subscription start date and end on the anniversary thereof, as defined by iSqFtâs proposal, quotation or renewal invoice. No portion of Subscriberâs fees will be refunded upon early termination of this Agreement.
7.4 No termination of this Agreement or suspension of access to the Product shall release Subscriber from any obligation to pay iSqFt any amount that has accrued or becomes payable at or prior to the date of termination. Upon termination of this Agreement by either party, all software, documentation and other Confidential Information will be returned to iSqFt or destroyed, or Subscriber shall provide written assurances that such actions have been taken.
8.1 As used in this Agreement, "Confidential Information" shall mean the information of iSqFt or any other Subscriber of the Product and/or their subsidiaries or affiliates, in whatever form, furnished or disclosed to Subscriber or its representatives in connection with this Agreement (including information disclosed before the date of this Agreement), including, without limitation, (a) technical information, such as ideas, research, inventions, data, specifications, formulae, photographs, technical reports, products, formulations, processes, plans, and other materials and information derived therefrom, which relate to the Product, including all associated documentation, under this Agreement; (b) business information, such as pricing information, strategic plans, contracts, contract drafts, marketing plans, supply chain data, customer information, financial information and other technical or business information of the disclosing party; and (c) all information and documentation resulting from or generated in connection with this Agreement.
8.2 Protection of Confidential Information. Any Subscriber receiving Confidential Information, agrees to: (a) Take all reasonable steps to maintain and safeguard Confidential Information against unauthorized disclosure; (b) Maintain Confidential Information in confidence and to not disclose it to any person not having a need to know consistent with the purposes of this Agreement; (c) Use Confidential Information only for the purposes contemplated by this Agreement; (d) Not copy, reverse engineer, or otherwise reproduce Confidential Information or any portion thereof for any reason whatsoever; (e) Not disclose or otherwise make Confidential Information available to third parties; (f) Take all reasonable measures to ensure that the Subscriberâs employees and representatives comply with the confidentiality provisions of this Agreement; (g) Notify the other party promptly of any unauthorized possession, disclosure, or use of Confidential Information or any violation of the provisions of this Agreement; and (h) Immediately notify the other party upon discovery of any unauthorized use or disclosure of Confidential Information and to cooperate in any reasonable way to help the other party regain possession of the Confidential Information and to prevent any further unauthorized use or disclosure.
8.3 Confidential Information shall not be deemed to include: (i) information already known to the Subscriber at the time the information is transmitted or becomes known by the Subscriber independently of the disclosing party through no wrongful act of the Subscriber or other party; (ii) information explicitly approved for general release to the public by the disclosing party; (iii) information disclosed to the public in a product marketed by the disclosing party; or (iv) information already known or available to the general public or which becomes known or available to the general public through no wrongful act on the part of the Subscriber.
8.4 Subscriberâs obligations under this Section 6 shall survive termination of this Agreement. Subscriber acknowledges that a breach of its obligations under this Section 6 will cause irreparable harm to iSqFt and/or its licensors for which monetary damages would be inadequate. iSqFt and/or its licensors will be entitled to injunctive relief for any such breaches, threatened or actual.
9.1 iSqFt warrants that the Product has the functionality described in the current published specifications for the Product. As iSqFt's sole responsibility and Subscriber's exclusive remedy, in the event of any material failure to meet such standards, iSqFt shall make all reasonable efforts to remedy any such failure.
9.3 NEITHER iSqFt NOR ANY THIRD PARTY LICENSORS MAKE ANY GUARANTEES OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF, OR RESULTS TO BE OBTAINED FROM USING THE PRODUCT.
10. Indemnities and Limitation on Liabilities
10.2 USE OF THE PRODUCT IS AT SUBSCRIBER'S SOLE RISK. SUBSCRIBER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM USE AND/OR DOWNLOADING THE PRODUCT, ACCESSED THROUGH OR OBTAINED BY MEANS OF iSqFt's WEBSITE. iSqFt AND ITS AFFILIATES, PARTNERS, AGENTS, LICENSORS, AND ANY PROVIDER OF TELECOMMUNICATIONS OR NETWORK SERVICES FOR iSqFt SHALL NOT BE LIABLE TO SUBSCRIBER OR ANYONE ELSE FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, DIRECT, INDIRECT, ATTORNEY'S FEES, DAMAGES FOR LOSS OF PROFITS, GOODWILL OR OTHER INTANGIBLE LOSSES OR SIMILAR DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO SUBSCRIBER IN THESE SITUATIONS.
10.3 iSqFtÂ® is an AGC of America Preferred Provider. Every transaction is, however, an arms-length agreement exclusively between iSqFtÂ® and the AGC member firms. Neither AGC of America nor its chapters assume any liability for the quality or performance of iSqFtÂ® or the services. The AGC member must look exclusively to iSqFtÂ® for all sales and service, including but not limited to delivery, credit, guarantees, warranties and performance.
10.5 Under no circumstances shall the total cumulative liability of iSqFt, its affiliates, partners, agents, and licensors for all claims, whether in contract, tort, or otherwise, arising out of, connected with, or resulting from use of the Product exceed the amounts paid by Subscriber to iSqFt under this Agreement during the 12 months immediately preceding the claim.
10.6 iSqFt AND ITS AFFILIATES, PARTNERS, AGENTS, LICENSORS, AND ANY PROVIDER OF TELECOMMUNICATIONS OR NETWORK SERVICES FOR iSqFt SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY ANY ERRORS OR OMISSIONS IN ANY CONTENT OR OTHER INFORMATION PROVIDED THROUGH THE WEBSITE OR PRODUCT OR BY DELAYS IN OR INTERRUPTIONS OF ACCESS TO THE PRODUCT.
10.7 Drawings may be copies of originals held by the Owner. In any instance where conflicting information is found between the Drawings and the originals, the original drawings will control. The presence of project information and/or documents through the Product in no way obligates the Owner to provide additional or updated bidding documents released as addenda to iSqFt.
11.1 Assignment. Subscriber may not assign or otherwise transfer this Agreement or any rights or obligations under this Agreement to any third party without the prior written consent of iSqFt. Consent shall not be unreasonably withheld. Subject to the restriction on transfer set forth in this Paragraph 11.1, this Agreement shall be binding upon and shall inure to the benefit of the parties' successors and assigns.
11.2 Waiver. The failure of either party to act upon any right, remedy, or breach of this Agreement shall not constitute a waiver of that or any other right, remedy, or breach. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
11.4 Government Rights. If used or acquired by the United States Government, the Government acknowledges that (a) Product constitutes "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 Agreement. The manufacturer is Construction Software Technologies, Inc., located at 4500 Lake Forest Drive, Suite 502, Cincinnati, Ohio 45242.
11.5 Export Control Laws. The Product may contain technology that is subject to export controls. Subscriber agrees not to transfer or export such Product from the United States.
11.6 Provisions Severable. The provisions of this Agreement are severable. If any provision is held to be invalid, unenforceable, or void, the remaining provisions shall not as a result be invalidated.
11.7 Notice. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof, (ii) if by mail, five (5) days after deposit in the United States mail system, postage prepaid, certified mail, return receipt requested; (iii) if by facsimile transmission, upon electronic confirmation thereof, or (iv) if by next day delivery service, upon such delivery.
11.8 Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
11.9 Independent Contractor. No party shall have the power to bind the other party, nor shall any party make any such representation to third parties. The parties' relation to the other shall be that of an independent contractor solely responsible for the manner and means by which the duties hereunder are carried out. No party shall be construed for any purpose to be an employee subject to the control and direction of the other party.
11.10 Force Majeure. If the performance of any part of this Agreement by the parties is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, terrorism, earthquake, fire, judicial or government action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes; provided, however, that if such period of force majeure last more than thirty (30) days, then the other party hereto may terminate this Agreement.
11.11 Entire Agreement. This Agreement and any attachments to it constitute the entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between the parties, whether written or oral, relating to the same subject matter.