Agreement for ClarkDietrich SubmittalPro®, iTools and Web Site Online Software
PLEASE READ THIS DOCUMENT CAREFULLY. This Agreement is a legal contract between you (either an individual or a single business entity) ("you" or the "Licensee") and Clarkwestern Dietrich Building Systems LLC ("us" or the "Licensor") for the online software identified above and, as applicable, any associated documentation made available to Licensee hereunder (collectively, the "Online Software").
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING ONLINE SOFTWARE. BY ACCESSING OR USING THE ONLINE SOFTWARE, YOU ARE AGREEING TO COMPLY WITH THIS AGREEMENT, WHICH MAY CHANGE FROM TIME TO TIME AS SET FORTH IN SECTION 17 BELOW. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE THE ONLINE SOFTWARE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY, OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.
1. Access and Use. Subject to Licensee's compliance with this Agreement, Licensor grants a non-exclusive, royalty-free, non-transferable right and license to Licensee and its Authorized Users to access, use, and execute the Online Software (in object code form only) via an Internet connection to Licensor's host servers solely for Licensee's internal business purposes including for the benefit of Licensee's customers. "Authorized Users" means Licensee including any employees or contractors of Licensee.
2. Upgrade, Updates and Patches. Licensor has no obligation to provide software upgrades, updates or patches to Licensee under this Agreement. Notwithstanding the foregoing, in the event Licensor, in its sole discretion, elects to provide a software upgrade, update or patch to Licensee, then all such upgrades, updates or patches provided shall be considered "Online Software" and subject to the terms and conditions of this Agreement.
(a) Licensee agrees that, except as permitted by this Agreement, it shall not itself, or through any parent, subsidiary, affiliate, agent or other third party, entity or other business structure: (i) copy, modify, transfer, assign, license, sublicense, distribute the Online Software or any way make it available to any third-party; (ii) reverse engineer the Online Software or disassemble, decompile or otherwise attempt to derive the source code for the Online Software; (iii) rent or lease the Online Software or use it in a service bureau capacity for the benefit of third parties; (iv) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notices on the Online Software or any other materials furnished to Licensee by Licensor hereunder; (v) write or develop any software program based upon the Online Software that would be considered a "derivative work" of the Online Software under the U.S. Copyright Act; (vi) use a robot, spider, or any similar device to copy or catalog any materials or information made available through the Online Software; or (vi) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the Online Software's control or security systems.
(b) Licensee agrees, for itself and its Authorized Users, not to use the Online Software for any purpose that is unlawful or prohibited by this Agreement. Licensee shall not use the Online Software in any manner that could damage, disable, overburden, or impair the Licensor's server or interfere with any other party's use and enjoyment of the Online Software. Neither Licensee nor its Authorized Users shall attempt to gain unauthorized access to any part of the Online Software, other user accounts, computer systems or networks connected to any Licensor server, or to any part of the Online Software through hacking, password mining or any other means. You and your Authorized Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Online Software.
4. Intellectual Property
(a) The Online Software including all intellectual property rights therein is owned by Licensor and its licensors and is licensed, not sold. Any rights that are not expressly granted to Licensee by this Agreement are expressly reserved. The Online Software is protected by copyright and other intellectual property laws and Licensee agrees to use the Online Software in compliance with the restrictions of those laws and this Agreement.
(b) Licensor has numerous registered and unregistered trademarks and service marks (collectively, "Trademarks"), including without limitation "SubmittalPro." No right, license or interest in or to Trademarks is granted to You under this Agreement.
5. Technical Support and Maintenance. Installation services, technical support or Online Software maintenance services are not available under this Agreement.
6. Data Practices
(a) We do not claim ownership of any data, information, or other content that you or your Authorized Users provide to us through your use and operation of the Online Software (the "Licensee Data").
(b) You consent to our collection, use, and disclosure, of Licensee Data as set forth in this Section 6. We may use the Licensee Data the purpose for which it was provided and to operate and administer the Online Software. In addition, we may retain, analyze, use, and share the Licensee Data or any other data associated with your account in anonymous, filtered, or aggregate form for general business purposes. From time to time, we may use the Licensee Data to contact you for a variety of reasons, such as customer service, or providing you promotional information for our products or services or those of our parent company, subsidiaries or other affiliated companies. Finally, in certain instances we may also share your Licensee Data with our third party vendors who perform functions on our behalf such as a third-party data center operator. Any such third-parties will observe the same data practices as set forth herein with respect to such Licensee Data. If you have any questions about our data practices, please contact us at the address set forth in Section 18(b) below.
7. Registration. Registration is not required to use the Online Software. However, if you do not register, then certain functionality associated with the Online Software may not be available to you. If you choose to register you will provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. You agree to notify us immediately of any unauthorized use of your user id.
8. Licensee Responsibilities. Licensee is responsible for taking steps to backup, secure, and protect all data, information, and materials that Licensee originates or receives so that Licensee has ready access thereto in the event of a loss or corruption of any such materials or an or interruption to the availability of the Online Software.
(a) THE ONLINE SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. To the maximum extent allowed by law, Licensor disclaims all express and implied warranties of any kind, including any implied warranties of merchantability and fitness for a particular purpose, any warranties arising from course of dealing or usage of trade, any warranties of title or against infringement, and any warranties that might otherwise be deemed to arise from samples or descriptions of the Online Software or any materials or services furnished or provided by Licensor to Licensee.
(b) Any data, information, files, and other materials (including, without limitation, any submittal sheets or design calculations) obtained via use of the Online Software (the "Output") are to assist Licensee in the selection and/or analysis of steel framing products sold by Licensor. Such Output is preliminary in nature and is not intended to replace the calculations and services of the architect and engineer of record. Licensee is solely responsible for independently verifying the accuracy of the Output and the currency of product specifications. In addition, Licensee is solely responsible for any negligent or illegal act or omission of Licensee or Licensee's agents, contractors, employees, or customers.
(c) These disclaimers form an essential part of the Agreement. Use of the Online Software authorized hereunder is subject to these disclaimers, except to the extent that any implied warranties cannot be validly waived.
10. LIMITATION ON LIABILITY
(a) Notwithstanding anything to the contrary contained herein, to the maximum extent permitted by law, in no event shall Licensor be liable or obligated in any manner to Licensee for any special, incidental, consequential, or exemplary damages arising out of or related to this Agreement or the Online Software, even if Licensor is informed in advance of the possibility of such damages occurring. This limitation is separate and independent of any other remedy limitations and shall not fail if such other limitation or remedy fails.
(b) Notwithstanding any other provisions of this Agreement, Licensor's aggregate liability to Licensee under this Agreement shall be limited to the greater of (1) amounts paid (if any) by Licensee under this Agreement within the twelve (12) months prior to the event, action, or circumstances giving rise to the liability; or (2) $500.00.
11. Licensee Indemnification. Licensee shall defend, indemnify and hold Licensor, its affiliated companies, parent, and subsidiaries as well as their respective directors, officers, and employees harmless from all losses, liabilities, damages, and expenses (including reasonable attorney's fees and costs) resulting from any claims, demands, actions and other proceedings by any third party arising from (a) Licensee's breach of this Agreement; (b) personal injury (including death) to a third party or property damage incurred by a third party resulting from or relating to Licensee's use of the Online Software; or (c) from Licensee's failure to comply with an applicable law, regulation, rule, mandate, or requirement of the U.S. government or any applicable professional standard, state or local law or regulation including, without limitation, Licensee's failure to comply with laws or regulations relating to privacy or intellectual property.
12. Licensor Indemnification
(a) Licensor shall defend and indemnify Licensee against all claims, liabilities, costs, and expenses (including reasonable attorneys' fees), reasonably incurred in the defense of any claim brought against Licensee in the United States by a third party alleging that Licensee's use of the Online Software in compliance with Licensor provided documentation and terms of this Agreement infringes or misappropriates any United States copyright, trademark, or trade secret right; provided, that Licensee promptly notifies Licensor in writing of any such claim and Licensor is permitted to control fully the defense and any settlement of such claim as long as such settlement shall not include a financial obligation on Licensee. Licensee shall cooperate reasonably in the defense of such claim and may appear, at its own expense. Licensee shall comply fully and promptly with the terms of any such settlement. Licensee shall not undertake any action in response to any infringement or alleged infringement of the Online Software that would be prejudicial to any defense that Licensor may have to the same. Notwithstanding the foregoing, such indemnity shall not apply if the alleged infringement results from use of the Online Software in conjunction with any other software, the combination of the Online Software with equipment not supplied by Licensor, or unlicensed activities (including, without limitation, unauthorized modification of the Online Software).
(b) In addition to the rights and remedies set forth above, should Online Software licensed hereunder become, or in Licensor's opinion be likely to become, the subject of such an infringement claim, Licensor may, at its sole option and expense, (a) procure for Licensee the right to make continued use of the Online Software, (b) replace or modify such Online Software so that it becomes non-infringing, or (c) terminate the license granted hereunder and require the return the Online Software.
(c) These indemnification provisions constitute Licensor's sole liability, and Licensee's sole recourse, in the event of any infringement of third-party rights by Licensee's use of the Online Software.
13. Confidentiality. Licensee acknowledges that the Online Software contains valuable trade secrets and/or confidential or proprietary information of Licensor and its licensors including without limitation know-how, inventions, techniques, processes, algorithms, software programs (object and/or source code), and databases. Licensee agrees that it will exercise reasonable care to prevent the unauthorized disclosure of such information to any third party, provided, however, that this paragraph imposes no obligation upon Licensee with respect to any information which: (i) is or becomes publicly known through no wrongful act of Licensee; (ii) is received by Licensee from a third party without breaching an obligation owed to Licensor; (iii) is independently developed by Licensee; or (iv) is required to be disclosed by Licensee pursuant to a subpoena or other legal process.
14. Future Availability. Licensor reserves the right, in its sole discretion, discontinue the Online Software or to alter prices, features, specifications, capabilities, functions, general availability or other characteristics of the Online Software.
(a) This Agreement is effective until terminated by you or us by prior written notice. Upon termination, you must cease your use of the Online Software. Subject to applicable law, we reserve the right in our sole discretion and at any time to suspend your registration and/or block your access to the Online Software, if we reasonably believe that you or any of your Authorized Users have violated the letter or spirit of this Agreement. You agree that we shall not be liable to you or any third party for any suspension of your account or for blocking your access to the Online Software.
(b) Either party may terminate this Agreement for convenience by providing written notice to the other party in accordance with the notice provisions in Section 18.
(c) Upon termination, all of Licensee's rights shall immediately terminate. Sections 3, 4, 6, 9, 10, 11, 13, 15(c),16, 17(b), and 19shall survive any termination of this Agreement. We reserve the right to delete any or all program or data files associated with your registration upon cancellation or termination of your registration or termination of this Agreement.
16. No Third Party Beneficiaries. Neither Licensee's use of the Online Software nor this Agreement will create any right or cause of action for any third party, nor will Licensor be responsible for any third party claims against Licensee.
(a) Licensor reserves the right to amend this Agreement at any time. Subject to Section 17(b) below, modifications to this Agreement will be effective upon the earlier of (1) fifteen (15) after posting the revised Agreement on the Licensor website or notification via email; or (2) if we provide a mechanism for your immediate acceptance of the revised terms such as a click-through confirmation or acceptance button, your acceptance. If you object to any subsequent revision to this Agreement, immediately discontinue use of the Online Software. All counteroffers to this Agreement (or amendments to the same) are categorically rejected.
(b) If a dispute arises out of or relates to the Online Software or this Agreement (the "Dispute"), the parties agree that the Agreement in effect at the time the dispute arose shall apply to the Dispute, including any amendments to the Agreement effective prior to the dispute arising. No amendments to the Agreement shall apply to any Dispute as to which we had notice prior to posting the amendment.
(a) To Licensee. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Notices made by us to you under this Agreement may be made by posting on the Licensor website. If you register, then notices made by us under this Agreement for you or your account specifically will be provided to you via the email address provided to us in your registration for the Online Software or in any updated email address you provide to us in accordance with standard account information update mechanism and/or procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
(b) To Licensor. For notices made by you to us under this Agreement and for questions regarding this Agreement or the Online Software, you may contact Licensor as follows:
9100 Centre Pointe Dr., Suite 210
West Chester, OH 45069
Any notice or other communication required or permitted to be given by you hereunder shall be given in writing and delivered in person, by U.S. Mail, via confirmed email or delivered by recognized courier service, properly addressed and stamped with the required postage, addressed to an authorized representative, at the address set forth above, and shall be deemed effective upon receipt.
(a) This Agreement constitutes the complete and exclusive agreement between Licensor and Licensee with respect to the Online Software and supersedes all prior oral or written communications or agreements between the parties relating to the Online Software.
(b) This Agreement shall be governed in all respects construed in accordance with the laws of the State of Ohio, without regard to its laws governing conflicts of laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(c) All disputes arising out of or related to this Agreement shall be brought exclusively in a federal or state court of competent jurisdiction located in Butler County, Ohio. Each party consents and submits to the personal jurisdiction of such courts and irrevocably waives any and all defenses inconsistent with this Section.
(d) Licensee acknowledges that (i) any misuse or threatened misuse of the Online Software or Licensor's intellectual property or (ii) any misuse or threatened misuse of the Licensor's confidential information will cause immediate irreparable harm to the non-breaching party for which there is no adequate remedy at law. Accordingly, the parties agree that the Licensor shall be entitled to immediate and permanent injunctive relief from any court of competent jurisdiction in the event of any such breach or threatened breach. Licensee hereby waives the defense that Licensor has or will have an adequate remedy at law for any such breach or threatened breach.
(e) Licensee may not assign or otherwise transfer its rights or obligations, in full or in part, under this Agreement without Licensor's express written consent and any such purported assignment is null and void. Upon any such permitted assignment, this Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of Licensee.
(f) The waiver by either party of a breach of any provisions contained herein shall be in writing to be effective and shall in no way be construed as a waiver of any succeeding breach of such provisions or the waiver of the provision itself.
(g) The relationship between the parties is that of independent contractors, and nothing in this agreement is intended to, or should be construed to, create any type of joint venture, partnership, agency, or any employment or fiduciary or franchise relationship.
(h) If any part of this Agreement shall be held to be unenforceable, the remainder of the Agreement shall nevertheless remain in full force and effect.
(i) No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the claim or cause of action has accrued.
20. U.S. Government Restricted Rights. The Online Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by governmental entities is subject to restrictions as set forth in subparagraph (c)(I)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable. Contractor/manufacturer is Clarkwestern Dietrich Building Systems LLC, at 9100 Centre Pointe Dr., Suite 210, West Chester, OH 45069.
YOU ARE ADVISED TO PRINT OUT A COPY OF THIS LEGAL AGREEMENT FOR YOUR OWN RECORDS.
CINLibrary 0121667.0585224 2613517v3