MASTER SERVICE AGREEMENT

THIS MASTER SERVICE AGREEMENT (the “Agreement”) is effective as of use of the Software (the “Effective Date”), and is made and entered into by and between Buildsy  (“Buildsy” or “Us”) with an and the user (“Customer” or “You”), each a “Party” and together the “Parties.”

WHEREAS

1. Customer requires Buildsy to provide certain Software and Services to further enable its business units to provide internal and external services for its businesses.  Customer wishes to rely upon Buildsy to provide those software and services at a level of timeliness and quality equal to or better than Customer achieves through its current internal operations (the “Services”); and

2. Buildsy specializes in providing the Software and Services and is prepared to accept responsibility for performing the Services on behalf of Customer.  

3. On the basis of the recommendations and statements in Buildsy’s proposal, presentations, printed material and correspondence, and in reliance on Buildsy’s stated expertise in providing Software and Services capable of meeting Customer’s current and future needs, Customer desires to engage Buildsy to perform such Services on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises hereof and the mutual covenants, agreements, obligations and consideration hereafter provided, it is agreed by the parties hereto as follows:

1. The foregoing recitals are true and correct and are incorporated herein by reference.  

2. Definitions.

1. “Affiliated Companies” shall include any company now in existence or that comes into existence that directly or indirectly Controls, is Controlled by or is under common Control with Service Provider.

2. “Control” (including with correlative meanings, the terms “Controls”, “Controlled by” and “under common Control with”) shall mean the power to directly or indirectly direct or cause to be directed the management or affairs of the applicable company. 

3. “Documentation” means any user manuals, technical manuals, training manuals, specifications or other explanatory or descriptive materials of any type, whether in paper or electronic form, provided by Buildsy with respect to the Software.

4. “Personal Information” means any personally identifiable information or data concerning or relating to Customer’s employees, agents, or customers that may be used to uniquely identify or contact such employees, agents or customers.  Personal Information includes the sub-category Personal Sensitive Information (“PSI”).  PSI is Customer designated Personal Information that requires additional control and protection, and includes: credit card numbers, debit card numbers, bank account numbers, social security numbers/social insurance numbers, passwords, security challenge information, driver’s license numbers, unique biometric data and Personal Identification Codes (“PIC”).  PSI also includes Personal Health Information (“PHI”) and Non-Public Personal Information (“NPPI”), as such terms are defined under any applicable privacy law of the United States or any other country if applicable, including but not limited to the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and the Gramm-Leach-Bliley Act (“GLB”) and state privacy laws, if applicable (collectively, the “Privacy Laws”); and any other information that Customer may identify in writing as Personal Sensitive Information.

5. “Services” shall be specified in each Statement of Work and shall include any Software and/or Deliverables.

6. “Software” means any software, whether it is owned by Buildsy directly or licensed separately from a third party, that is necessary for Customer to effectively utilize the Services.  “Software” shall be included in the definition of “Services.”  Additionally, Software means computer programs identified in a Statement Of Work, together with input and output formats, object code, program listings, data models, flow charts, outlines, narrative descriptions, operating instructions, and supporting documentation.  Software shall include all authorized reproductions, corrections, Updates, new Releases, and new versions of such programs.  

7. “Service Level Adjustment Fee” shall mean those amounts that Buildsy is required to pay to Customer in connection with the failure to meet the Service Levels described in each Statement of Work.

8. “Buildsy Personnel” shall refer to the employees, subcontractors and independent contractors of Buildsy, as well as the employees and independent contractors of Buildsy's subcontractors.  

9. “Updates and Releases” As part of the Services, at no additional cost, Buildsy shall automatically apply all revisions, updates, Upgrades, modifications, corrections, releases (to include all point, minor and major new releases), versions, fixes, program temporary fixes, replacement products, revised Documentation and enhancements (collectively, "Updates") to the Software as soon as such Updates have been made available to any of Buildsy’s other customers.

10. “Upgrade” shall mean a new version of the Software that includes enhancements and new functionality, and is designated by a change in the digit to the left of the decimal point (i.e., a change from version x.x to y.x) and any upgrades to the associated Documentation.

3. MODIFICATION OF AGREEMENT, SITE OR SERVICES Buildsy may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, Buildsy may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account (“Account”) information current. Buildsy assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address. In addition, Buildsy may terminate Your use of Services for any violation or breach of any of the terms of this Agreement by You. Buildsy RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THIS SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME.

4. Eligibility; Authority This Site and the Services are available only to individuals or entities (“Users”) who can form legally binding contracts under applicable law. By using this Site or the Services, you represent and warrant that you are (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, and/or (iii) are not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction.

If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your", "User" or "customer" shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, Buildsy finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Buildsy shall not be liable for any loss or damage resulting from Buildsy’s reliance on any instruction, notice, document or communication reasonably believed by Buildsy to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Buildsy reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.

5. Your Account.  In order to access some of the features of this Site or use some of the Services, you will have to create an Account. You represent and warrant to Buildsy that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If Buildsy has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, Buildsy reserves the right, in its sole and absolute discretion, to suspend or terminate your Account. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure, including without limitation your customer number/login, password, Payment Method(s) (as defined below), and shopper PIN. For security purposes, Buildsy recommends that you change your password and shopper PIN at least once every six (6) months for each Account. You must notify Buildsy immediately of any breach of security or unauthorized use of your Account. Buildsy will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss Buildsy or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.

6. Description of Services, Agreement.  

1. Statements of Work.  Buildsy shall provide Customer with the Services as described from time to time in a Statement of Work, in substantially the same form as attached hereto as “Exhibit A” pursuant to the terms and conditions of this Agreement (hereinafter referred to as “SOW”).  Each SOW will state the term during which the Services will be provided.  If no specific term is described, the SOW will automatically terminate upon the completion of the described Services.  The Services shall be performed by Buildsy in accordance with the standards and service levels set forth in a SOW and on the attached Exhibit B (“Service Level(s)”). Each SOW will be considered a separate agreement which incorporates the terms and conditions of this Agreement, and each SOW and any amendment to this Agreement or a SOW must state that it is entered into pursuant to, and incorporates the terms and conditions of, this Agreement.   Any reference to “Agreement” shall include the applicable SOW.  Each Statement of Work will list the location(s) at which the Services will be performed.

2. License Grant.  Buildsy hereby grants to Customer and its Affiliated Companies a nonexclusive, irrevocable during the Term, license to use the Services, including any Software, for the duration of this Agreement for Customer’s business (“License”).  This license shall be nontransferable except in conjunction with a permitted assignment of this Agreement.  Customer may: (i) use the Services and Software in Customer’s business; (ii) permit use of the Services and Software by one or more third parties, including, without limitation, to perform information processing, disaster recovery, disaster recovery testing or other services for Customer, provided such third parties agree to keep the Software confidential; and (iii) permit use of the Services and Software by persons with authorized access to Customer’s computer system, including, but not limited to, agents, auditors, temporary personnel, contracted personnel, customers, consultants and suppliers.  Unless otherwise specifically set forth in a SOW, Buildsy, at its own cost, shall obtain and maintain all licenses, consents, authorizations and approvals that are necessary for Buildsy and Buildsy’s Personnel to provide the Services and Software to Customer as set forth in a SOW.  

3. Ownership.  Buildsy owns all right, title and interest in and to the Software and hardware tools, ideas, concepts, methodologies, processes, inventions and utilities developed by or on behalf of Buildsy (“Buildsy Property”). Buildsy reserves the right to develop, use and distribute works that perform functions the same as or similar to the Buildsy Property, along with any residuals pursuant to the Services, except for data pertaining solely to Customer.  The preceding notwithstanding, Buildsy grants Customer a license to use, in conjunction with the Services and for such term as Customer is licensed to use the Services, any work product or other tangible deliverables provided under this Agreement that are not Deliverables as defined herein.  Excluding any Buildsy Property, all products, reports or other deliverables (collectively, “Deliverables”) created, provided or delivered as part of the Services shall be the sole and exclusive property of Customer, and Customer shall hold all right, title and interest to such Deliverables.  Any adaptations and/or modifications to the Deliverables or Customer’s Confidential Information (defined below), and all derivative works of either shall be deemed to be the sole property of Customer, whether prepared by Customer, Buildsy or any other party.  Any such adaptations, modifications and/or derivative works prepared by Buildsy for Customer shall be deemed to be a “work for hire” under the U.S. copyright law.  To the extent that any of the foregoing may not be deemed a “works for hire” by operation of law, Buildsy conveys and assigns to Customer the sole and exclusive ownership right, title, and interest, including but not limited to copyrights, in all such works prepared by Buildsy for Customer, and said ownership rights shall vest in Customer immediately upon creation.  Customer shall have the right to obtain and hold in its own name copyrights, registrations and similar protections, which may be available in such adaptations, modifications and/or derivative works.  Buildsy agrees to give Customer or its designees all assistance reasonably required to perfect such rights, including, but not limited to, the identification of any such materials and the execution of any instruments required to register copyrights.  This Section shall survive termination of this Agreement.

4. Service Levels.  The Services shall be performed by Buildsy in accordance with the standards and service levels set forth in a SOW, or on the attached Exhibit B (“Service Level(s)”).

5. Conflict of Terms.  In the event of any conflict between the terms of this Agreement and the terms contained in any SOW, exhibit or attachment to this Agreement, the terms of this Agreement shall control (regardless of any conflicting terms in any SOW, exhibit or attachment purporting to do otherwise) except with respect to: (i) the description of the Services provided in any SOW, (ii) the permitted use described in any SOW, (iii) the amount of any license or other fees due under such SOW, and (iv) any term expressly permitted by this Agreement to be determined in a SOW.

6. Fees.  In exchange for Buildsy’s provision of the Services, Customer shall pay the fees set forth in the relevant SOW (“Fees”).  Unless otherwise stated in the applicable SOW, Fees may not be increased during the term of any SOW.  

7. Refund and Re-Performance.  Should Buildsy fail to provide Services in accordance with this Agreement, then Buildsy shall at its expense but at Customer’s discretion, and in addition to any other rights or remedies available to Customer under the Agreement, at law or in equity, refund to Customer all amounts paid for the failed Services and all other Services materially or adversely affected, or re-perform the failed Services at no additional charge until either (i) Customer instructs Buildsy to cease providing Services, in which case Customer may terminate the relevant SOW, or (ii) Buildsy provides Services in a manner consistent with this Agreement.

7. Rules of Conduct; You acknowledge and agree that:

1. Your use of this Site and the Services, including any content you submit, will comply with this Agreement, any applicable Services Agreement or policy that may apply to your Services and all applicable local, state, national and international laws, rules and regulations.
2. You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent.
3. You will not use this Site or the Services in a manner (as determined by Buildsy in its sole and absolute discretion) that:
4. • Is illegal, or promotes or encourages illegal activity;
   • Promotes, encourages or engages in the exploitation of children, or any activity related to the proliferation of child sexual abuse material (CSAM);
   • Promotes, encourages or engages in terrorism, violence against people, animals, or property;
   • Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
   • Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
   • Violates the Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking;
   • Infringes on the intellectual property rights of another User or any other person or entity;
   • Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
   • Interferes with the operation of this Site or the Services found at this Site;
   • Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
   • Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Buildsy or Buildsy’s Services.
4. You will not perform any false, abusive or fraudulent activity. You will not perform any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;
5. You will not copy or distribute in any medium any part of this Site or the Services , except where expressly authorized by Buildsy.
6. You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
7. You will not access Buildsy Content (as defined below) or User Content through any technology or means other than through this Site itself, or as Buildsy may designate.
8. You agree to back-up all of your User Content so that you can access and use it when needed. Buildsy does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.
9. You will not re-sell or provide the Services for a commercial purpose, including any of Buildsy's related technologies, without Buildsy's express prior written consent.
10. You will not circumvent, disable or otherwise interfere with the security-related features of this Site or the Services found at this Site (including without limitation those features that prevent or restrict use or copying of any Buildsy Content or User Content) or enforce limitations on the use of this Site or the Services found at this Site, the Buildsy Content or the User Content therein.
11. You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
12. You are aware that Buildsy may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you may be subject to call recording and hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether Buildsy asks you on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which Buildsy is a party. Further, by providing your telephone or mobile number, you consent to receive marketing telephone calls from or on behalf of Buildsy that may be initiated by an automatic telephone dialing system and/or use an artificial or prerecorded voice. You understand that providing consent is not a condition of purchasing any good or service from Buildsy. Similarly, by providing your mobile number, you consent to receive marketing text messages from or on behalf of Buildsy that may be sent by an automatic telephone dialing system. You understand that providing consent is not a condition of purchasing any good or service from Buildsy. Message and data rates may apply.
13. Without limiting any of the rights set forth elsewhere in this Agreement, Buildsy expressly reserves the right to deny, cancel, terminate, suspend, or limit future access to this Site or any Services (including but not limited to the right to cancel or transfer any domain name registration) to any User (i) whose Account or Services were previously terminated or suspended, whether due to breach of this or any other Agreement or any Buildsy policy, or (ii) who otherwise engages or has engaged in inappropriate or unlawful activity while utilizing the Site or Services (as determined by Buildsy in its sole and absolute discretion).
14. If your purchase or account activity shows signs of fraud, abuse or suspicious activity, Buildsy may cancel any service associated with your name, email address or account and close any associated Buildsy accounts. If Buildsy, in its sole discretion, determines that any conducted activity is fraudulent, Buildsy reserves the right to take any necessary legal action and you may be liable for monetary losses to Buildsy including litigation costs and damages. To contest cancellation of Services or freezing or closure of an account, please contact Buildsy.
15. Copies and Documentation.  Customer may utilize the Software, at no additional charge, to the extent reasonably required for training and testing purposes and make such copies of the Documentation as is reasonably necessary to facilitate Customer’s permitted uses of the Software. Additionally, the Documentation must explain the use of all functionalities of the Software being delivered, and must be sufficient to enable Customer to test fully and use the Software.

9. Application of Updates and Releases.  Buildsy is responsible for the application of all Updates and Releases to the Software.  For all new Updates and new Releases, Buildsy shall implement as it deems appropriate to prevent downtime.

10. Term and Termination.

1. Term.  This Agreement shall be effective as of the date listed in the introductory paragraph above and shall remain in full force and effect unless terminated as specified below.  Each SOW shall provide a term for such SOW.

2. Termination for Cause.  Either party may terminate this Agreement for a material breach by the other party which is not cured within the shorter of: thirty (30) days after the receipt by the breaching party of written notice and reasonable description of the breach; or when it becomes evident that cure within such thirty (30) day period is impossible.  

3. Termination without Cause.  This Agreement and/or any SOW may be terminated by Buildsy for any reason or no reason, at any time, by giving Customer no less than thirty (30) days prior written notice thereof.

4. Survival.  Any sections of this Agreement and any SOW which expressly survive termination of this Agreement, or which, by their nature, should reasonably survive termination of this Agreement, shall survive.

11. Service Level Agreement.  

1. Service Level requirements and the remedies for non-performance shall be detailed in each SOW or on the attached Exhibit B (“Service Level Agreement” or “SLA”).  Buildsy shall be required to provide proof of meeting all Service Levels on a monthly basis or as otherwise detailed in each SOW or on Exhibit B.  If Customer provides Buildsy with notice of Buildsy’s failure to meet a Service Level, Buildsy shall pay the Service Level Adjustment Fee detailed in the SOW or on Exhibit B with respect to such Service Level.
2. Continuous Improvement and Best Practices.  In addition to Buildsy’s obligations with respect to any Service Levels set forth in a SOW, Buildsy shall on a continuous basis (a) identify opportunities to implement new technologies that shall improve the Services and the Service Levels and (b) identify and apply proven techniques and tools from other installations within its operations that would benefit Customer.  Buildsy shall, from time to time, include updates with respect to such improvements, techniques and tools in the reports provided to Customer pursuant to this Agreement.

12. Protection of Data.  

Some of the features of this Site or the Services, including those Services that are hosted with Buildsy, may allow Users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice via forum posts, content submitted in connection with a contest, product reviews or recommendations, or photos to be incorporated into a social media event or activity (“User Submissions”), (b) literary, artistic, musical, or other content, including but not limited to photos and videos, or (c) other information about their business or customers (together with User Submissions, (“User Content”). All content submitted through your Account or processed on your behalf is considered User Content. By posting, publishing, or processing User Content to this Site or to or via the Services, you represent and warrant to Buildsy that (i) you have all necessary rights to process and distribute User Content via this Site or via the Services, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party. You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.

User Submissions. You acknowledge and agree that your User Submissions are entirely voluntary, do not establish a confidential relationship or obligate Buildsy to treat your User Submissions as confidential or secret, that Buildsy has no obligation, either express or implied, to develop or use your User Submissions, and no compensation is due to you or to anyone else for any intentional or unintentional use of your User Submissions, and that Buildsy may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.

Buildsy shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions posted to this Site, and shall be entitled to the unrestricted use and dissemination of any User Submissions posted to this Site for any purpose, commercial or otherwise, without acknowledgment or compensation to you or to anyone else.

User Content Other Than User Submissions. By posting or publishing User Content to this Site or through the Services, you authorize Buildsy to use the intellectual property and other proprietary rights in and to your User Content to enable inclusion and use of the User Content in the manner contemplated by this Site, this Agreement, and any Services Agreements applicable to the User Content. You hereby grant Buildsy a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content in connection with this Site, the Services and Buildsy's (and Buildsy’s affiliates’) business(es), including without limitation for promoting and redistributing all or part of this Site in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to you or any third party. You also hereby grant each User of this Site a non-exclusive license to access your User Content (with the exception of User Content that you designate “private” or “password protected”) through this Site, and to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content as permitted through the functionality of this Site and under this Agreement. The above licenses granted by you in your User Content terminate within a commercially reasonable time after you remove or delete your User Content from this Site. You understand and agree, however, that Buildsy may retain (but not distribute, display, or perform) server copies of your User Content that have been removed or deleted. The above licenses granted by you in your User Content are perpetual and irrevocable. You also understand and agree that Buildsy may retain and use any User Content that has been incorporated into any derivative works as allowed pursuant to any Services Agreements. Notwithstanding anything to the contrary contained herein, Buildsy shall not use any User Content that has been designated “private” or “password protected” by you for the purpose of promoting this Site or Buildsy’s (or Buildsy’s affiliates’) business(es). If you have a website or other content hosted by Buildsy, you shall retain all of your ownership or licensed rights in User Content.

Buildsy Data. For the avoidance of doubt, User Content does not include “Buildsy Data,” which means (a) all information relating to Buildsy’s business and delivery of the Services, including but not limited to PII concerning You and (where applicable) your employees or representatives, (b) other data concerning or relating to Your account, transaction history, use of the Services and identity verification, and (c) subject to any restrictions under any applicable Data Protection Laws, any PII that has been aggregated, pseudonymized, or anonymized (collectively, “De-identified”) pursuant to the terms of any Services Agreement. You acknowledge and agree that you have no rights to Buildsy Data under this or any Services Agreement.

13. Moderation and Restrictions. When using this Site and/or any Service, you will not provide, post, publish, share or otherwise make available or accessible any illegal content or content that is incompatible with or violates this Agreement.

Buildsy generally does not pre-screen User Content (whether posted to a website hosted by Buildsy or posted to this Site). However, and subject to applicable laws, Buildsy reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. By way of example, Buildsy may for instance voluntarily screen or pre-screen material for potential child sexual abuse material and act against any such material.

Buildsy may remove any item of User Content (whether posted to a website hosted by Buildsy or posted to this Site) and/or suspend or terminate a User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by Buildsy in its sole and absolute discretion), at any time and without prior notice. Buildsy may also suspend or terminate a User’s access to this Site or the Services found at this Site if Buildsy has reason to believe the User is a repeat offender.

If Buildsy terminates your access to this Site or the Services found at this Site, Buildsy may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.

Buildsy also reserves the right, but undertakes no duty, to review use of the Services and account activity for any activity that may pose a risk to Buildsy and/or Buildsy’s systems. Buildsy also may review, adjust the configurations of, and/or change the settings of any Services, including the settings of any hosted environment, that Buildsy believes, in its sole and absolute discretion, may pose a risk to Buildsy, Buildsy’s systems, or any of its environments.

14. Transmission of Data:  If a SOW specifies Buildsy is to transmit any Customer data, such transmission shall be in accordance with the Buildsy Data Transmission Standards attached and incorporated herein as Exhibit G.

15. Maintenance and Support.  Buildsy shall provide to Customer the maintenance and Support services described herein with respect to the Services, including, but not limited to, any and all Updates, upgrades, new Releases, patches, fixes and modifications to the Software and Service.  

Maintenance shall be performed in a timely and professional manner by qualified maintenance technicians familiar with the Services and its operation.  Buildsy shall provide, upon Customer’s request, periodic reports on the status of maintenance issues requested by Customer.   

Buildsy shall provide Support to Customer consisting of, without limitation, a toll free number for answers to Customer’s questions concerning use of the Services, assistance in solving problems encountered in Customer’s use of the Services, and for the reporting and correction of suspected problems (“Support”).  Support will be provided twenty-four (24) hours a day, seven (7) days per week.

16. Subcontractors.  Buildsy may utilize subcontracting with third parties to perform any of the Services described herein. 

17. Relationship of Parties.  The parties intend that an independent contractor relationship be created by this Agreement.  The conduct and control of the work will lie solely with Buildsy.  Subject to the confidentiality provisions contained in this Agreement, Buildsy shall be free to contract for similar Services to be performed for other customers while under contract with Customer.  Buildsy is not to be considered an agent or employee of Customer for any purpose nor is it entitled to any of the benefits Customer provides for its employees.

18. Permits and Consents.  Except as may be expressly stated in a SOW, Buildsy shall be responsible for securing any required permits, consents and authorizations required to perform its assigned tasks under this Agreement.

19. Confidentiality.  The provisions contained in this Section shall apply in the absence of a Non-Disclosure Agreement (“NDA”) between the two parties, or, where a NDA or BAA has been entered into by and between the parties, the provisions of this Section including all subsections thereunder, shall apply and govern the treatment of Confidential Information in all instances where the language of the NDA or BAA is either inapplicable or mute.  . 

1. Confidential Information.  The term “Confidential Information” means all information provided by one party (the “Disclosing Party”) to the other (the “Receiving Party”) except (i) information which the Receiving Party has confirmed is publicly known, so long as it is not publicly known through the acts or omissions of the Receiving Party; or (ii) information that was or becomes available to the Receiving Party on a non-confidential basis from another source provided that such source is not known to be prohibited from transmitting the information by a contractual, legal or fiduciary obligation; or (iii) is independently derived by the Receiving Party without the aid, application, or use of the Confidential Information; or (iv) information that is approved for release by written authorization of the Disclosing Party.  Such Confidential Information shall include, but shall not be limited to:  (1) all computer software and systems, documentation and methods or concepts utilized therein, and related materials and information in the possession of or under the control of the Disclosing Party; (2) any information relating to the business of the Disclosing Party; (3) any unannounced products or services of the Disclosing Party; and (4) all information, reports and work product that may be generated by either Party in connection with this Agreement, regardless of form, including, but not limited to, print and electronic or display rights of any such information.

2. Disclosure Restrictions.  The Receiving Party agrees to hold the Confidential Information in strict confidence, to use or disclose the Confidential Information only as is required in its performance under this Agreement, and to disclose the Confidential Information to only those of its employees, agents, or subcontractors who require such disclosure in order to perform hereunder.  The Receiving Party shall protect the Confidential Information that is in its possession or control using at least the same means it uses to protect its own Confidential Information, but in any event, not less than reasonable means.  The Receiving Party shall take all appropriate action, whether by instruction, agreement, or otherwise, to ensure the protection, confidentiality, and security of the Confidential Information, including any copies thereof, and to satisfy its obligations under this Agreement.

3. Compulsory Disclosure.  If the Receiving Party, or anyone to whom it discloses the Confidential Information, receives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by a government agency, the Receiving Party shall to the extent legally permissible: (i) promptly notify the Disclosing Party of the existence, terms, and circumstances surrounding such a request; (ii) consult with the Disclosing Party on the advisability of taking steps to resist or narrow that request; (iii) if disclosure of that Confidential Information is required, furnish only such portion of the Confidential Information as the Receiving Party is advised by its counsel is legally required to be disclosed; and (iv) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information that is required to be disclosed.  A disclosure pursuant to law or government authority order that meets the requirements of this Section will be an authorized disclosure.

4. Notice of Violation.  The Receiving Party shall, within five (5) business days of becoming aware of a use or disclosure of Confidential Information in violation of this Agreement by Receiving Party, its officers, directors, employees, contractors or agents or by a third party to which Receiving Party disclosed Confidential Information pursuant to this Agreement, report any such disclosure to Disclosing Party.  Receiving Party will take steps to mitigate the harmful effect of the non-permitted use or disclosure and include in its report a description of such steps. Notwithstanding anything to the contrary in any other agreement between Receiving Party and Disclosing Party, Disclosing Party may terminate this Agreement and any other agreement upon thirty (30) days’ notice to Receiving Party if Disclosing Party determines that Receiving Party has breached a material term of this Agreement and such breach has not been cured.

5. Protected Health Information.  If, in the course of performing its duties for Customer, Buildsy obtains Protected Health Information, as that term is defined in the privacy regulations of the Health Insurance Portability and Accountability Act (HIPAA) at 45 C.F.R. § 164.501, then Buildsy shall make its internal practices, books and records relating to the use and disclosure of Protected Health Information received from, or created or received by Buildsy on behalf of, Customer available to the Secretary of Health and Human Services or any other officer or employee of the Department of Health and Human Services to whom authority has been delegated for purposes of determining Customer’s and Buildsy’s compliance with HIPAA.

6. No License.  Except as is specifically stated in this Agreement, or as may be reasonably assumed based upon Customer’s need to enjoy the benefits of the Services including, without limitation, any information, reports, and work product created by Buildsy as part of the Services, no license or right is granted under this Agreement to the Receiving Party to use, execute, reproduce, display, perform, distribute externally, sell copies of or prepare derivative works based upon any Confidential Information, except that the Receiving Party may exercise the foregoing rights of use, execution, reproduction and adaptation within its own organization solely for the purpose of rendering performance under this Agreement. 

7. Return of Confidential Information.  At the request of the Disclosing Party, and except for such copies as the Receiving Party is required to retain pursuant to applicable law or regulation or internal record retention policy, the Receiving Party and its Representatives shall:

i. Return to the Disclosing Party any and all of the Disclosing Party’s Confidential Information and any tangible materials relating thereto, and all tangible copies of such information or materials; or

ii. Destroy any and all other copies, information or materials in whatever form or media pertaining to such Confidential Information and/or its use or application; and

iii. Provide to the Disclosing Party a signed written statement that all such Confidential Information and other information, copies and materials pertaining thereto have been returned to the Disclosing Party or destroyed in accordance with the terms of this provision.

The obligations of this Subsection to return or destroy Confidential Information and copies thereof received, stored or disseminated in an electronic form shall not apply to any electronic copies stored for back-up or archiving purposes that are not readily accessible by the Receiving Party or its Representatives, provided that, the Receiving Party and its Representatives agree not to restore any such back-up or archived copies for the purpose of accessing the Confidential Information.

8. Equitable Relief.  The Receiving Party acknowledges that any disclosure of Confidential Information in violation of this Agreement would be detrimental to the Disclosing Party’s business, and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to equitable relief, including injunctions, without posting bond.

9. Survival.  The terms contained in this Section shall survive termination of this Agreement.  

20. No Warranties.  YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND AT THIS SITE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. BUILDSY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BUILDSY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (IV) ANY ACTION OR FAILURE TO ACT BY BUILDSY CONSISTENT WITH THE TERMS OF THIS AGREEMENT, AND BUILDSY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT AUTO-GENERATED OUTPUTS INCLUDING TEXT, LOGOS, NAMES, SLOGANS, ETC. HAVE NOT BEEN REVIEWED FOR ACCURACY OR INTELLECTUAL PROPERTY CLEARANCE. BUILDSY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE ACCURACY, RELIABILITY, WHETHER OUTPUTS MAY INFRINGE ON THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, ETC. YOU SHOULD SEEK INDEPENDENT PROFESSIONAL LEGAL ADVICE BEFORE YOU RELY ON ANY AUTO-GENERATE OUTPUT.

YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY BUILDSY, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES), AND THIRD PARTY SERVICE PROVIDERS WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.

21. Limitation of Liability

IN NO EVENT SHALL BUILDSY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO, FROM, OR THROUGH, THIS SITE OR THE SERVICES (INCLUDING ANY SITES OR SERVICES LINKED TO THIS SITE OR THE SERVICES (WHETHER THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) AND/OR ANY REMOVAL OR ATTEMPTED REMOVAL THEREOF, (IX) ANY REVIEW, SCANNING, ACCESS TO, AND/OR MODIFICATION OF THE SERVICES USED BY YOU, INCLUDING BUT NOT LIMITED TO ANY HOSTED ENVIRONMENT, (X) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, (XI) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT BUILDSY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND/OR (XII) ANY AUTO-GENERATED OUTPUTS CREATED USING THE SERVICES.

IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL BUILDSY’S TOTAL AGGREGATE LIABILITY EXCEED $10,000.00 U.S. DOLLARS.

THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.

22. Electronic Self-Help.  Buildsy warrants:  (a) that it will not, including without limitation in the event of any dispute with Customer regarding an alleged breach of this Agreement, use any type of electronic or other means to prevent or interfere with the Services, networks, and Software under this Agreement; (b) that unless expressly disclosed and described in writing to Customer prior to the execution of this Agreement or any SOW, the Services will not contain any functionality which may restrict Customer’s use of or access to any Software or related programs, data or equipment. Buildsy understands that a breach of this Section could foreseeably cause substantial harm to Customer and to numerous third parties having business relationships with Customer.  This Section shall not be subject to the Limitation of Liability provision of this Agreement.  

23. Buildsy’s Obligation to Provide Source Code.  In the event the source code either has not been escrowed or for any reason cannot readily be obtained from an escrow agent, Customer shall have the right to obtain source code directly from Buildsy if: (a) bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or similar proceedings are commenced by or against Buildsy, or all or any substantial part of its property under any federal or state law; or (b) Buildsy voluntarily or involuntarily ceases to provide the Software and Services.  Upon the occurrence of said event, and provided that Customer is not then in material default under the applicable SOW, Buildsy shall provide to Customer, at no additional cost to Customer and within ten (10) days after Buildsy’s receipt of Customer’s written request, one complete copy of the source code used in the preparation of the then current version of the Software (and of the two (2) prior versions, if requested by Customer), along with all documentation necessary for the use of such source code.  Upon Customer’s receipt of the source code, Customer shall have a paid-up, nonexclusive, perpetual, irrevocable license to use the source code to modify and maintain the Software for the uses permitted by this Agreement.  Any modifications made by Customer to the source code shall be owned by Customer.

24. Log Shipping:  Buildsy shall make available to Customer, in an agreed upon format, any log data relating to system or application performance, errors, and any relevant data tables for Customer’s evaluation (“Logs”).  Customer shall have the right to utilize third party software to evaluate such Logs.  Customer shall make available to Buildsy, and Buildsy shall install, a log forwarder for automatic transmission of the applicable Logs from Buildsy to Customer.  All Logs shall be transferred in compliance with the Buildsy Data Transmission Standards attached hereto as Exhibit G.

25. General Indemnity. You agree to protect, defend, indemnify and hold harmless Buildsy and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by Buildsy directly or indirectly arising from (i) your use of and access to this Site or the Services found at this Site; (ii) your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.

26. Non-exclusivity.  This Agreement is nonexclusive.

27. Computer System Access.  If Buildsy will have access to any part of Customer’s computer systems or networks in the course of performing under this Agreement, the provisions of this Section shall apply.  Buildsy agrees that each individual having such access:  (a) will be assigned a separate log-in ID by Customer and will use only that ID when logging on to Customer’s system; (b) will log-off Customer’s system immediately upon completion of each session of service; (c) will not allow other individuals to access Customer’s computer system; and (d) will keep strictly confidential the log-in ID and all other information that enables such access. Buildsy will promptly notify Customer upon termination of employment or reassignment of personnel with access to Customer’s computer system so that log-in IDs may be changed and other necessary preventive measures may be taken by Customer to prevent unauthorized access.  If Customer revises the requirements for access to its computer system, Buildsy shall be notified of the changed or additional requirements and shall comply with them as a prerequisite to further access.  Each individual who is to be allowed access to Customer’s computer system may be required by Customer to read a summary of the conditions under which such access is allowed, and to sign that summary indicating they understand their responsibilities in connection with such access.

28. Remote Access.  If Buildsy will have remote access to any part of Customer’s computer system in the course of performing under this Agreement, the provisions of this Section shall apply in addition to all provisions of the Section titled “Computer System Access”.  Buildsy agrees: (a) to use only a remote access method approved by Customer; (b) to provide Customer with the full name of each individual who will have remote access to Customer’s computer system, and the phone number at which the individual may be reached during dial-in; (c) to ensure that any computer used by its personnel to remotely access Customer’s system will not simultaneously access the Internet or any other third party network while logged on to Customer’s system.  In addition, Buildsy warrants and agrees that its personnel will not remotely access Customer’s system from a networked computer unless the network is protected from all third party networks by a firewall that is maintained with all patches up to date and staffed seven (7) days per week, twenty-four (24) hours per day.  Said firewall must be certified by the International Computer Security Association (ICSA) (or an equivalent certification as determined by Customer) if the connection to the Customer’s network is an ongoing connection, such as frame relay or T1 line.

29. Publicity.  Buildsy may use or refer to Customer, its trademarks, service marks, trade names, or any other descriptions of Customer in any public statement, advertise or promote Buildsy, its products or business using any trademark, service mark, trade name or other description of Customer.

30. Right to Cure.  If either party believes the other party has breached this Agreement, it shall notify the other party in writing of the particulars of the alleged breach.  If the other party cures such breach within thirty (30) days after the date of such notice, the breach shall not be considered material.  A breach by either party of one SOW shall not affect other SOW’s, which are separate agreements. 

31. Acquisitions and Divestitures.

1. Acquisitions.  With respect to new entities, Buildsy shall, if requested by Customer in writing, provide Services (or designated portions thereof) to new entities, including transition assistance services, pursuant to Subsection 6(e) “Transition Assistance,” designed to integrate such new entities’ information technology systems into the Service.  In this context, “new entities” shall be defined to include those entities whereby, during the term of this Agreement, Customer:  (i) acquires the assets, stock or other equity or beneficial interests of the entity; or (ii) merges with an entity that was not, prior to such merger, an Affiliated Company of Customer; or (iii) manages or otherwise possesses the ability to control the day-to-day operations of an entity that was not previously an Affiliated Company of Customer.

2. Divestitures.  At Customer’s written request, Buildsy shall continue to provide the Services (or designated portions thereof) to any Divested Entity for up to twenty-four (24) months from the effective date of such divestiture under the then-current terms, conditions and pricing of this Agreement.  In addition, Buildsy shall provide termination assistance Services to Customer, the Divested Entity, and, as applicable, the acquiring entity, pursuant to Subsection 6(e) titled “Transition Assistance.”  In this context, “Divested Entity” shall be defined as a former Affiliated Company of Customer, in which Customer has reduced its interest below the level of fifty percent (50%) or otherwise ceases to possess the ability to Control the day-to-day operations of the entity.

32. Dispute Resolution.

1. Informal.  Before initiating arbitration or other legal action against the other relating to a dispute herein, the parties agree to work in good faith to resolve disputes and claims arising out of this Agreement.  If the dispute is not resolved within 30 days of the commencement of informal efforts under this paragraph, either party may pursue formal dispute resolution.  This paragraph will not apply if: (i) expiration of the applicable time for bringing an action is imminent; or (ii) injunctive or other equitable relief is necessary to protect a party’s proprietary rights.
2. Arbitration.  Except with respect to disputes arising from a misappropriation or misuse of either party’s proprietary rights, any dispute or controversy arising out of this Agreement or its interpretation that is not resolved under Section 39(a), may be submitted to and resolved by arbitration under the then prevailing Commercial Arbitration Rules of the American Arbitration Association (“AAA”) as the same may be modified by this Agreement, if written notice is given by one party of its request for arbitration to the other party, setting forth the specifics of the claim being made and the parties agree to arbitrate such dispute.  A formal demand for arbitration shall be submitted to AAA by such requesting party.  The arbitration shall be heard before an arbitrator mutually agreeable to the parties; provided, that if the parties cannot agree on the choice of arbitrator within ten (10) days after the parties agree to arbitrate, then the arbitration shall be heard by three (3) arbitrators, one (1) chosen by each party, and the third chosen by those two (2) arbitrators.  The arbitrators will be selected from a panel of persons having experience with and knowledge of information technology and at least one (1) of the arbitrators selected will be an attorney.  A hearing on the merits of all claims for which arbitration is sought by either party shall be commenced not later than sixty (60) days from the date demand for arbitration is submitted to AAA.  The arbitrator(s) must render a decision within ten (10) days after the conclusion of such hearing.  The arbitrator(s) will have no power to modify or abridge the terms of this Agreement and shall have no power to award damages inconsistent with the Agreement or punitive damages or any other damages not measured by the prevailing party’s actual damages, and the parties expressly waive their right to obtain such damages in arbitration.  Any award in such arbitration shall be final and binding upon the parties and the judgment thereon may be entered in any court of competent jurisdiction.  Each party will bear its own costs and attorney fees in arbitration.  The fees and expenses of the arbitration(s) will be shared equally by the parties.  This Section shall survive termination of this Agreement. If arbitration is used to resolve any disputes between the parties, the proceedings to resolve any such dispute shall be held in the headquarters city of the party receiving the request for arbitration from the other party.

3. Preliminary Injunctive Relief.  The dispute resolution procedures set forth above shall be the sole and exclusive procedures for the resolution by the parties to this Agreement of any disputes which arise out of or are related to this Agreement, except that a party may seek preliminary or temporary injunctive relief from a court if, in the party’s sole judgment, such action is necessary to avoid irreparable harm or to preserve the status quo.  If a party seeks judicial injunctive relief as described in this paragraph, the parties shall continue to participate in good faith in the dispute resolution procedures described above.  The Parties agree that no court which a party petitions to grant the type of preliminary injunctive relief described in this paragraph may award damages or resolve the dispute.  Venue for any judicial proceeding for preliminary or temporary injunctive relief shall be in the Courts of the Western District of Missouri and any objections or defenses based on lack of personal jurisdiction or venue are hereby expressly waived.  

4. Remedies not Exclusive.  Unless this Agreement expressly states that a remedy is exclusive, no remedy made available under this Agreement is intended to be exclusive.

33. Assignment.  This Agreement may not be assigned or transferred by Buildsy without the prior written consent of Customer, which consent shall not be unreasonably withheld, conditioned or delayed.  Customer may withhold consent if Customer deems, in its sole discretion, that the assignment will negatively impact Customers business.

34. Compliance with Law.  In performing Buildsy’s obligations under this Agreement, Buildsy, its personnel and subcontractors, if any, shall comply with all applicable city, state and federal laws, ordinances, rules and regulations.

35. Miscellaneous Provisions.

1. Any amendments to this Agreement must be in writing and signed by both parties.

2. All notices and other communications under this Agreement shall be in writing and sent by hand-delivery, reputable commercial courier (e.g., Federal Express, UPS or DHL), facsimile (with a confirmation copy sent by commercial carrier or certified U.S. mail), or electronic mail (with a confirmation copy sent by commercial carrier or certified U.S. mail) addressed to the following described addresses of the parties hereto, or to such other address as a party may request in writing
   

Notice pursuant to this Agreement shall be deemed given upon receipt or attempted delivery (if receipt is refused).

3. Time is of the essence in the performance of the terms of this Agreement.

4. No delay or omission by either party in exercising any right or remedy hereunder available to that party shall operate as a waiver of such right or remedy or any other right or remedy.  A waiver on one occasion shall not be construed as a bar to, or waiver of, any right or remedy on any future occasion.

5. If any provisions of this Agreement shall be for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, but this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.

6. Each party will be excused from the performance of its obligations under this Agreement, except for any payment obligations accruing prior to the event, for any period to the extent that it is prevented from performing, in whole or in part, as a result of delays caused by the other party or any act of God, natural disaster, war, civil disturbance, court order or other events beyond the reasonable control of a party, except where such delay was caused by the act or omission of the non-performing party.  Such non-performance will not be a default or a ground for termination as long as reasonable means are taken by the non-performing party to expeditiously remedy the problem causing such non-performance.

7. This Agreement and all rights and duties hereunder, including but not limited to all matters of construction, validity and performance, shall be governed by the law of Missouri.  However, if any version of the Uniform Computer Information Transaction Act (UCITA) is enacted as part of the law of the aforementioned state, said statute shall not govern any aspect of this Agreement or any license granted hereunder, and instead the law as it existed prior to such enactment shall govern.  

8. Unless this Agreement expressly states that a remedy is exclusive, no remedy is intended to be exclusive.

9. The parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises shall not be construed to the detriment of the drafter on the basis that such party or its professional advisor was the drafter, but shall be construed according to the intent of the parties as evidenced by the entire Agreement.

10. The paragraph headings in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement.  The wording used in this Agreement is the wording chosen by the parties to express their mutual intent, and no rule of strict construction shall apply against either party.

11. This Agreement, any Statements of Work, Exhibits and any mutually-executed amendments or attachments thereto shall constitute the entire agreement between the parties regarding the subject matter hereof, and any prior understanding or representation of any kind regarding the subject matter hereof preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated into this Agreement.

12. Facsimile or electronic transmission of this signed, original Agreement and retransmission of any signed facsimile or electronic transmission thereof shall be the same as delivery of an original.  Each party agrees that delivery of this Agreement by facsimile or electronic transmission as provided above shall be evidence of the execution and delivery of the Agreement by all parties to the same extent that an original signature could be used.  The preceding notwithstanding, at the request of either party, the other party will confirm facsimile or electronically transmitted signatures by signing an original document.

THE PARTIES EVIDENCE THEIR AGREEMENT WITH THESE TERMS AND CONDITIONS BY USE AND ACCESS TO BUILDSY SOFTWARE.

EXHIBIT A

SERVICE LEVEL AGREEMENT 

1. Support Services.
2. 1. Buildsy Response Services. “Buildsy Response Services” means the Services provided by Buildsy in response to Priority 1 – 4 Services Requests, as further described below.  Buildsy will provide prioritized, toll-free support services for the Service to be accessed by Customer and via which Customer can make support requests 24x7x365 (each such request, a “Service Request”). 
   2. Response Times. Customer will identify the priority level of each Service Request according to the descriptions below.  When a Service Request is submitted as a Priority 1 – Priority 3 issue, the applicable Customer contact must be reasonably available to work with the Buildsy technical support team while the Service Request is being resolved.
   3. 1. Priority 1 Service Requests: CRITICAL – Response Time of fifteen (15) minutes.  A Priority 1 Service Request involves interruption to, unavailability of, or material degradation of the performance of critical functionality of the Service that prevents any User from accessing or utilizing such functionality.  Buildsy will respond to Priority 1 Service Requests within one (1) hour of the earlier of (a) Customer leaving a message on the authorized Buildsy telephone support line and (b) Buildsy becoming aware of the issue.  Until a Priority 1 Service Request has been resolved, Buildsy shall provide Customer with regular updates on what work has been done and what actions Buildsy plans to take to resolve the issue.  Buildsy will use commercially reasonable efforts and work continuously (24x7x365) to resolve the Priority 1 issue as quickly as possible. For purposes of this subsection, a Priority 1 Service Request includes: 
      2. 1. all or a material part of the Service is completely nonfunctional or inaccessible;
         2. the Service is functional, but the response time for critical functionality of the Service for any User globally is substantially degraded;
         3. any Security Incident;
         4. Customer Data integrity has been or is being compromised or is at material risk of imminently becoming compromised;
         5. denial-of-service attacks; or
         6. any interruption to the Services that does, or could, (a) affect or impact the entire User community or (b) negatively affect or impact any Customer Network Firm’s brand or goodwill.
      2. Priority 2 Service Requests: URGENT – Response Time of thirty (30) minutes. A Priority 2 Service Request involves an interruption to, unavailability of, or material degradation of the performance of material, but non-critical, functionality of the Service, which negatively affects any access to or utilization of such functionality by any User.  Buildsy will respond to Priority 2 Service Requests within two (2) hours of the earlier of: (i) Customer leaving a message on the authorized Buildsy telephone support line and (ii) Buildsy becoming aware of the issue.  Until a Priority 2 Service Request has been resolved, Buildsy shall provide Customer with regular updates on what work has been done and what action Buildsy plans to take to resolve the issue.  Buildsy will use commercially reasonable efforts and work continuously (24x7x365) to resolve the Priority 2 Service Requests as quickly as possible.  For purposes of this subsection, a Priority 2 Service Request includes:
      3. 1. all or a material part of the Service is completely nonfunctional;
         2. the Service is functional, but the response time for critical functionality of the Service for any User globally is not substantially degraded;
         3. Customer Data integrity is not compromised, but is at-risk of becoming compromised; or 
         4. any issue not qualifying as a Priority 1 Service Request but which puts urgent deadlines at risk, prevents Customer from performing important tasks, and/or otherwise restricts the capabilities of the Services in a material manner.
      3. Priority 3 Service Requests: IMPORTANT – Response Time of four (4) hours. A Priority 3 Service Request involves (i) minor degradation in the performance of any functionality provided by the Services, and (ii) any performance issue not accounted for in the descriptions of Priority 1 or 2 Service Requests.  Buildsy will respond to Priority 3 Service Requests within four (4) hours of the earlier of (i) Customer leaving a message on the authorized Buildsy telephone support line and (ii) Buildsy becoming aware of the issue.  Until a Priority 3 Service Request has been resolved, Buildsy will provide Customer with updates on what work has been done and what actions Buildsy plans to take to resolve the issue.  Buildsy will use commercially reasonable efforts and work continuously (24x7x365) to resolve the Priority 3 Service Request as quickly as possible.  For purposes of this subsection, a “minor degradation in performance” means the Service is functional, but the response time for any User globally is somewhat degraded.
      4. Priority 4 Service Requests: MINOR – Response Time of one (1) business day. A Priority 4 Service Request involves “how to” questions, including issues related to APIs and integration, installation and configuration inquiries, enhancement requests, or documentation questions.  Priority 4 issues do not materially affect normal operations of the Services.  Buildsy will respond to Priority 4 issues within one (1) business day of Customer leaving a message on the authorized Buildsy telephone support line and discuss with Customer a plan for resolving the issue. Buildsy will work on Priority 4 issues in normal business hours and will complete such work according to the schedule provided to Customer for each such Priority 4 Service Request. 
   3. Response Procedure. Buildsy shall respond to each Service Request from Customer within the Response Time described above.  Buildsy will generally respond via the same medium of communication by which the Service Request was reported.  Buildsy shall resolve the Service Request by providing a remedy that may take the form of eliminating the defect, providing software updates, or demonstrating how to avoid the effects of the defect with reasonable commercial effort and without any material adverse affect on functionality or productivity.  The remedy may also include error corrections, patches, bug fixes, workarounds (i.e. temporary solutions), replacement deliveries or any other type of software corrections or modifications.  If a Service Request cannot be resolved within the timeframe agreed to by the Parties or, in the absence of such an agreement, a commercially reasonable timeframe, the issue will be escalated within each Party’s organization.  Each Party acknowledges that despite a Party’s commercially reasonable efforts, not all problems may be solvable; provided, however, that the foregoing acknowledgement shall not affect either Party’s rights or obligations under the Agreement, this SLA or the applicable Order Form.

For each issue reported to Buildsy by Customer that is a Priority 1 Service Requests or Priority 2 Service Requests issue and Buildsy fails to remedy such issue in the times set forth above with respect to such Severity Levels 1 or 2 as applicable, Buildsy shall credit Customer’s next month’s invoice with a five percent (5%) credit for each and every period for the specific severity level on all affected service(s); e.g. if there is a Priority 1 Service Requests issue that has Customer’s business unit unable to work, for every calendar eight hours that the Priority 1 Service Requests problem is not fixed, Buildsy will credit Customer five percent (5%) of the next month’s invoice. For each issue reported to Buildsy by Customer that is a Priority 3 Service Requests issue and Buildsy fails to remedy the issue in the times listed above, Buildsy shall credit Customer’s next month’s invoice with a two percent (2%) credit on all affected services.

These Service Levels shall be measured using a monthly report, provided by Buildsy, that documents time and nature of calls (or preferred method of notice) to the Customer’s service team, time and date of initial response, and time of problem resolution.  Resolution is defined as the case being closed by Customer.  

If Buildsy fails to fix a Priority 1 Service Requests or Priority 2 Service Requests issue in the allotted timeframe four (4) or more times in a rolling three (3) month period, Customer shall have the right to immediately terminate this Agreement for cause as described in Section 4 Term and Termination, Subsection (b) Termination for Cause.

2. Availability, Downtime and Response Time definitions

1. “Available” shall mean the Service or system is up, running and responsive to ping requests and is providing Customer the functionality and the Services described in an Exhibit B and any SOW.  

2. “Availability” shall be 99.99% Available and shall mean Scheduled Uptime minus Unplanned Downtime, divided by Scheduled Uptime multiplied by 100 (to determine a percentage). For purposes of determining whether Buildsy's performance meets any Service Level, Buildsy's performance will be measured based on a monthly average for the Services and Materials.  The following is ‘Availability’ expressed as a mathematical formula:

1. A = Availability
2. UD = Unplanned Downtime
3. SU = Scheduled Uptime
4. ED = Excusable Downtime

5. A = [(SU - (UD - ED)/SU] x 100

3. The following is an example, determined on a monthly basis, using the above formula:

1. SU = 720
2. UD = 9.5 hours
3. ED = 3

4. [(720 - (9.5 - 3)/720] x 100 = 99.09%.

4. “Scheduled Uptime” shall mean the days of the week and hours per day that the Services and Materials or network is scheduled to be Available for use by Customer subject to Scheduled Downtime.

5. “Scheduled Downtime” shall mean, of the Scheduled Uptime, the aggregate number of hours in any calendar month during which the system or network is scheduled to be unavailable for use by Customer due to such things as preventive maintenance, system upgrades, etc.

6. “Unplanned Downtime” shall mean, of the Scheduled Uptime, the aggregate number of hours in any calendar month during which the system or network is unavailable.

7. “Excusable Downtime” shall mean, of the Scheduled Uptime, the aggregate amount of time in any calendar month during which the Services and Materials or network is unavailable for use by Customer due to action or inaction by Customer, its Suppliers or agents, or due to a force majeure event, which is excusable under this Agreement.  Emergency system maintenance shall be considered Excusable Downtime.

8. “Response Time” shall mean the amount of time required by Buildsy to respond to a Service Request as described herein or further described in a Statement of Work. 

It may be necessary to temporarily restrict access to Customer’s application(s) and/or database(s) without prior notice to protect the integrity of the application and database; such restricted access shall be considered Excusable Downtime for the purpose of calculating Service Levels.

THE ONLY EXCLUSIVE REMEDY FOR BREACH OF SLAS SHALL BE A PRO RATA REFUND BASED UPON DOWNTIME IF BUILDSY BREACHED SLAS FOR 3 CONSECUTIVE MONTHS.