BUILT.IO TRIAL SERVICES AGREEMENT
BY CHECKING THE APPLICABLE BOX ACCEPTING THESE TERMS AND CLICKING THE “SIGN UP” BUTTON, YOU AGREE TO THE FOREGOING TERMS SET FORTH HEREIN. IF YOU DO NOT WISH TO AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICES, WHICH ARE CONDITIONED UPON THE ACCEPTANCE OF THIS BUILT.IO MASTER AGREEMENT.
1. Key Definitions. “You,” “your” and “Customer” refers to the individual or entity that has entered into this agreement (“Agreement”) and ordered Services from Raw Engineering, Inc. d/b/a “Built.io” (“Built.io”) or an authorized reseller. The term “Service” or “Services” refers to the services provided by Built.io as described in the applicable. The term “Schedule” refers to the additional terms and conditions contained Exhibit A SaaS Trial Terms, which is attached hereto and the terms thereof incorporated by reference, and which must be accompanied by an Order agreed to by Customer. “Order” refers to a form issued by Built.io containing the terms of payment and specifications of the Services provided under this Agreement and the applicable Schedule or detailing fees, if any, deliverables and other related terms. An Order shall be issued pursuant to the terms and conditions of this Agreement and the applicable Schedule, and shall be agreed to by Built.io and Customer. “Law” refers to any applicable statute, regulation, rule, ordinance or ruling by a federal, state or local government.
2. Applicability. This Agreement is valid for the order which this Agreement accompanies and any other orders issued pursuant to the terms of this Agreement and which incorporates such terms by reference.
3. Changes in Law. In the event that there are any changes in law that materially and adversely affect Company’s ability to perform the Services under any Schedule and Order (a “Regulatory Change”), then the parties shall negotiate in good faith to amend the applicable Order in order to enable Built.io to continue to render the required Services in accordance with the law as changed; provided, however, a Regulatory Change shall not include an increase in taxes or other regulatory or legal changes that merely increase Built.io’s cost of doing business, performing the Services.
4. Payments. In consideration of the Services to be rendered pursuant to the applicable Schedule and Order, Fees shall be paid as set forth in each applicable Order. Unless otherwise agreed by the parties, payment for Services shall be due thirty (30) days from the date or dates set forth in the applicable Order or, if applicable, the date of issuance of the invoice issued therefrom. Reasonable expenses shall be payable pursuant to the terms set forth in the applicable Schedule and Order. Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law that Built.io must pay based on the Service or Services you ordered, except for taxes based on Built.io’s income or taxes for employment of its employees. All fees listed in any Orders are exclusive of any taxes. Customer agrees that it has not relied on the future availability of any Services or updates in entering into the payment obligations in an Order.
5. Intellectual Property. Except as expressly set forth in an applicable Schedule, Built.io retains all right, title and interest in the Services. Without limiting the foregoing, and pursuant to the terms of the applicable Schedule, Built.io may grant Customer a limited, revocable license to use the Services, and/or may assign right and title to certain custom developed assets provided pursuant to a Order as a “Work for Hire” as defined under United States Copyright Law.
6.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential information shall include, without limitations, any (a) information, ideas or materials of a technical or creative nature, such as research and development results, designs and specifications, computer source and object code, patent applications, and other materials and concepts relating to Developer’s and Customer’s products, services, processes, technology or other intellectual property rights; (b) information, ideas or materials of a business nature, such as non-public financial information; information regarding profits, costs, marketing, purchasing, sales, customers, suppliers, contract terms, employees and salaries; product development plans; business and financial plans and forecasts; and marketing and sales plans and forecasts; (c) all personal property, including, without limitation, all books, manuals, records, reports, notes, contracts, lists, blueprints and other documents or materials, or copies thereof, received by Developer from Customer in the course of Developer’s rendering of Services to Customer, including, without limitation, records and any other materials pertaining to Work Product; and (d) the terms and conditions of this Agreement, including all Statements of Work. Built.io and Customer Trade Secrets shall be considered Confidential Information. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 6.2. “Affiliates” shall mean Customer and its subsidiaries and parents, as well as their employees, contractors, officers, directors, agents, attorneys and accountants.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. Insurance. Built.io will, at its own expense, obtain and maintain the following insurance:
(a) General Commercial Liability. Commercial General Liability, with coverage including, but not limited to, premises/operations, contractual, personal and advertising injury, and products/completed operations liabilities, with limits of at least $1,000,000 per occurrence for bodily injury and property damage combined. Customer shall be named as an additional insured, with the standard "separation of Insureds" provision or an endorsement for cross-liability coverage. The policy shall be endorsed with forms CG 20 10 07 04 and CG 20 37 07 04 or their equivalent, to state that coverage is primary, and non-contributory with other available coverage. Except where prohibited by law, the insurance carrier shall waive all rights of subrogation that the insurer may have against Customer. Built.io warrants that its subcontractors will maintain Commercial General Liability insurance, and Built.io shall indemnify Customer for any loss, cost, liability, expense and damage suffered by Customer as a result of failure of its subcontractors to maintain such insurance. Built.io further warrants that, if a subcontractor does not maintain Commercial General Liability insurance, Built.io's Commercial General Liability insurance shall insure the subcontractor. Limits of liability requirements may be satisfied by a combination of Commercial General Liability and Umbrella Excess Liability policies.
(b) Workers’ Compensation. If any persons are employed, or uninsured independent contractors are hired, by Built.io at any time during the term of this Agreement, Workers’ Compensation insurance, including coverage for all costs, benefits, and liabilities under Workers’ Compensation and similar laws which may accrue in favor of any person employed by Built.io, for all states in which Built.io will perform services for Customer, and Employer’s Liability insurance with limits of liability of at least $100,000 per accident or disease and $500,000 aggregate by disease. Except where prohibited by law, the insurance carrier shall waive all rights of subrogation that the insurer may have against Customer and the Indemnified Parties. Such insurance shall contain an Alternate Employer Endorsement naming Customer as the alternate employer. Built.io warrants that its subcontractors will maintain Workers’ Compensation and Employer’s Liability insurance, and Built.io shall indemnify Customer for any loss, cost, liability, expense and damage suffered by Customer as a result of failure of its subcontractors to maintain such insurance. Built.io further warrants that, if a subcontractor does not maintain Workers' Compensation insurance, Built.io's Workers' Compensation insurance shall insure the subcontractor. Built.io may self-insure Workers’ Compensation only in states where the governing state bureau has issued to the Built.io a qualified self-insurance license for Workers' Compensation.
(c) Professional Liability. Professional Liability or Errors & Omissions Insurance with limits of not less than $2,000,000 per claim and annual aggregate, covering all acts, errors, omissions, negligence, infringement of intellectual property (except patent and trade secret) and network risks (including coverage for unauthorized access, failure of security, breach of privacy perils, as well as notification costs and regulatory defense) in the performance of services for Customer or on behalf of Customer hereunder. The policy shall contain an affirmative coverage grant for contingent bodily injury and property damage emanating from the failure of the technology services or an error or omission in the content/information provided. Such insurance shall be maintained in force at all times during the term of the agreement and for a period of 3 years thereafter for services completed during the term of the agreement. Customer shall be given at least 30 days’ notice of the cancellation or expiration of the aforementioned insurance for any reason.
(d) Policies. Insurance shall be purchased from companies having a rating of A- VII or better in the current Best’s Insurance Reports published by A.M. Best Customer. Insurance policies shall not be cancelled or materially changed without at least 30 days prior written notice to Customer. Evidence of insurance shall be submitted in advance of or concurrent with the execution of this Agreement, on each insurance policy renewal thereafter, and annually for two years after this Agreement ends.
(e) Coverage. If Built.io does not provide Customer with such evidence of insurance or such policies do not afford adequate protection for Customer, Customer will so advise Built.io, but Customer failure to do so is not a waiver of these insurance requirements. If Built.io does not furnish evidence of acceptable coverage within 15 days, Customer shall have the right, in its sole discretion, to (i) withhold payments from Built.io until evidence of adequate coverage is provided, or (ii) immediately terminate this Agreement.
(f) No Modification to Obligations. Failure to obtain and maintain required insurance or failure by Customer to notify Built.io shall not relieve Built.io of any obligation contained in this Agreement.
8. MUTUAL INDEMNIFICATION
8.1. Indemnification by Built.io. Built.io will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a Service in accordance with this Agreement and applicable Schedules infringes or misappropriates such third party’s United States copyright, trademark or patent (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement of, a Claim Against Customer, provided Customer (a) promptly gives Built.io written notice of the Claim Against Customer, (b) gives Built.io sole control of the defense and settlement of the Claim Against Customer (except that Built.io may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) give Built.io all reasonable assistance, at Built.io’s expense. If Built.io receives information about an infringement or misappropriation claim related to a Service, Built.io may in Built.io’s discretion and at no cost to Customer (i) modify the Service so that it no longer infringes or misappropriates such third party rights, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s obligations for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from v) use of Services in combination with third party services or systems; w) Customer content x) use of Built.io Services with any third party product or service; y) Customer’s breach of this Agreement or any Schedules; or z) claims arising from the subsequent modification of Built.io Services.
8.2. Indemnification by Customer. Customer will defend Built.io against any claim, demand, suit or proceeding made or brought against Built.io by a third party alleging that Customer Data, or Customer’s use of any Service in breach of this Agreement or any applicable Schedule, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Built.io”), and will indemnify Built.io from any damages, attorney fees and costs finally awarded against Built.io as a result of, or for any amounts paid by Built.io under a court-approved settlement of, a Claim Against Built.io, provided Built.io (a) promptly give Customer written notice of the Claim Against Built.io, (b) give Customer sole control of the defense and settlement of the Claim Against Built.io (except that Customer may not settle any Claim Against Built.io unless it unconditionally releases Built.io of all liability), and (c) give Customer all reasonable assistance, at Customer’s expense.
8.3. Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.
9. LIMITATION OF LIABILITY
9.1. Limitation of Aggregate Liability. EXCEPT FOR ANY CLAIM ARISING FROM CUSTOMER’S INDEMNITY OBLIGATIONS UNDER SECTION 8, OR A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 4. ANY CAUSE OF ACTION ARISING FROM THE USE OF THE SERVICES, EXCEPT FOR THOSE RELATING TO INDEMNIFICATION OR ARISING FROM NON-PAYMENT OF FEES, MUST BE BROUGHT WITHIN TWO YEARS OF ITS OCCURRENCE.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. BUILT.IO MAKES NO WARRANTY AND SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, INTERRUPTION OF SERVICE OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF A PARTY, INCLUDING WITHOUT LIMITATION CUSTOMER OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Orders hereunder have expired or have been terminated.
10.2. Termination. A party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11. WARRANTY AND DISCLAIMER
11.1. Built.io warrants and represents that i) the Services will be provided in a competent and workmanlike manner and ii) that the Services will not infringe upon any U.S. Patent, copyright or trade secret.
11.2 The party executing this Agreement on behalf of Customer warrants and represents that they are authorized to enter into this Agreement and bind Customer and that all information provided is accurate, true and correct.
11.3. Customer warrants and represents that i) it will comply with all Laws; ii) it will not use the Services to infringe or violate any third party rights; iii) the billing contact information provided by Customer in this Agreement is correct and up to date and Customer will promptly notify Built.io of any changes.
11.2. Disclaimers. BUILT.IO DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT BUILT.IO WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT BUILT.IO DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BUILT.IO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES AND ANY WARRANTIES IDENTIFIED AS AN EXPRESS WARRANTY IN AN APPLICABLE SCHEDULE ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY BREACH OF WARRANTY MUST BE REPORTED TO BUILT.IO WITHIN ONE YEAR AFTER THE INITIAL PROVISION OF THE SERVICES.
12. GENERAL PROVISIONS
12.1. Surviving Provisions. The Sections titled “Changes in Law,” "Payment," "Intellectual Property" "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," “Disclaimers” and "General Provisions" and any subsections thereof will survive any termination or expiration of this Agreement.
12.2. Notice. All notices to Built.io shall be valid only if sent via pre-paid first class certified mail or overnight courier to Built.io attn: General Counsel, One Hallidie Plaza, Suite 306, San Francisco, CA 94102, via facsimile transmission with proof of transmission or, for notices excluding notice of indemnification obligations, through email address or portal to a designated person approved in writing by Built.io. Built.io may give notice applicable to Built.io software as a service customer base by means of a general notice on Built.io portal for the Services, and notices specific to Customer by electronic mail to Customer e-mail address on record in Built.io account information or by written communication sent by first class mail or pre-paid post to the most recent Customer address provided by Customer to Built.io. Customer’s current address shall be the address provided on the Order.
12.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of California, without reference to its conflicts of law principles, and consents to the exclusive jurisdiction of the of the State of California, the County of San Francisco and the Federal courts located within such jurisdiction.
12.1. Export Compliance. The Services, other technology Built.io makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
12.2. Anti-Corruption. Customer have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Built.io employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Built.io Legal Department at email@example.com.
12.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Built.io regarding Customer’s use of Services and, except for the Terms of Service, supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order (2) the applicable Schedule; (3) this Agreement, (4) the Terms of Service and (5) the Documentation.
12.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Built.io will refund to Customer any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.5. Relationship of the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever. Neither party shall have any obligation or duty to the other party except as expressly and specifically set forth herein, and no such obligation or duty shall be implied by or inferred from this Agreement or the conduct of the parties hereunder. Buit.io (and its employees, agents and contractors) shall not be entitled to any of the benefits that Customer may make available to its employees, such as group health, life, disability or worker’s compensation insurance, profit-sharing or retirement benefits, and Customer shall not withhold or make payments or contributions therefor or obtain such protection for Buit.io or its employees, contractors or agents. Buit.io shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Buit.io’s performance of services and receipt of fees under this Agreement.
12.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.8. Remedies Cumulative. All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.
12.9. UCITA and Third Party Contractors. The Uniform Computer Information Transactions Act does not apply to this software as a service agreement or orders placed under it. Customer understands that Built.io business partners, including any third party firms retained by Customer to provide computer consulting services, are independent of Built.io and are not Built.io agents. Built.io are not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as Built.io subcontractor on an engagement ordered under this software as a service agreement.
12.10. Force Majeure. Neither of party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either party may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for programs delivered or services provided.
12.11. Publicity. Unless expressly set forth otherwise in an Order, Built.io may, upon Customer’s review and approval (which approval shall not be unreasonably withheld or delayed), reference Customer’s name and trademark, as well as other information pertaining to the provision and results of the services, in case studies and other Built.io marketing materials.
EXHIBIT A – SaaS Trial Terms
BY CHECKING THE APPLICABLE BOX ACCEPTING THESE TERMS AND CLICKING THE “SIGN UP” BUTTON, YOU AGREE TO THE FOREGOING TERMS SET FORTH HEREIN. IF YOU DO NOT WISH TO AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICES, WHICH ARE CONDITIONED UPON THE ACCEPTANCE OF THIS EXHIBIT A SaaS Trial Terms (“SCHEDULE A”) AND THE BUILT.IO TRIAL SERVICES AGREEMENT.
This Schedule A is issued pursuant to the Built.io Trial Services Agreement and the terms and conditions thereof are incorporated by reference herein.
“Agreement” means the Built.io Master Agreement.
“Schedule” means this Schedule A.
“Beta Services” means Built.io services that are not generally available to customers.
“Customer Data” means electronic data and information submitted by or for Customer to the Purchased Services or collected and processed by or for Customer using the Purchased Services, excluding Non-Built.io Applications.
“Documentation” means Built.io Service online user guides, documentation, and help and training materials, as updated from time to time, accessible via the Built.io website or login to the applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services.
“Non-Built.io Applications” means a Web-based, mobile or offline software application or service, or service that is provided by Customer or a third party and interoperates with a Service, including, for example, an application that is developed by or for Customer, a third party service that a customer may have access to, subscribe to, or obtain a license to, a third party service that a customer may have access to, subscribe to, or obtain a license to, or is listed on a Marketplace.
“Order” means one or more Built.io approved ordering document specifying the Services to be provided hereunder that is entered into between Customer and Built.io either in paper form or online, including any addenda and supplements thereto signed by both parties. By entering into an Order hereunder or completing an online Order, Customer agrees to be bound by the terms of the Agreement and Schedule as if it were an original party hereto.
“Purchased Services” means Services that Customer, or Customer Affiliates purchases under an Order, as distinguished from those provided pursuant to a Trial Subscriptions as set forth in Sections 2.6 and 2.7 of this Schedule .
“Services” means any Built.io Software-as-a-Service or Platform-as-a-Service services that are ordered by Customer under an Order and made available online by Built.io, including associated offline components, as described in the Documentation and may include, without limitation, Built.io Flow Express, Built.io Flow Enterprise, Built.io Contentstack and Built.io Backend. “Services” exclude Non-Built.io Applications.
“Specifications” means the descriptions of the features and functions of the Services and any performance specifications therefore set forth in the applicable Documentation, and in the applicable Order(s). Upon Customer’s request, Built.io will provide copies of all applicable Specifications set forth in the applicable Documentation.
“User” means an individual who is authorized by Customer to use a Service on Customer’s behalf, and to whom Customer (or Built.io at Customer’s request) has supplied a user identification and password. Users may include, for example, Customer employees, consultants, contractors and agents, and third parties with which Customer transacts business.
2. OUR RESPONSIBILITIES
2.1. Provision of Purchased Services and Service Levels. Upon Built.io acceptance of the Order and for the duration of the period set forth in the Order, Built.io will (a) make the Services available to Customer pursuant to the Agreement, Schedule and the applicable Orders, (b) provide Our standard support for the Purchased Services to Customer at no additional charge, and (c) use commercially reasonable efforts to make the online Purchased Services available 95% of the time, 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 4 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Built.io Application, or denial of service attack.
2.3. Protection of Customer Data. Built.io will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, reasonable measures for preventing access, use, modification or disclosure of Customer Data by Built.io personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as Customer expressly permits in writing.
2.4. Built.io Personnel. Built.io will be responsible for the performance of Built.io personnel (including Built.io employees and contractors) and their compliance with Built.io obligations under the Agreement and Schedule, except as otherwise specified herein.
2.5. Beta Services. From time to time, Built.io may invite Customer to try Beta Services at no charge. Customer may accept or decline any such trial in Customer’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Schedule or the Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of 90 days days from the trial start date or the date that a version of the Beta Services becomes generally available. Built.io may discontinue Beta Services at any time in Built.io sole discretion and may never make them generally available. Built.io will have no liability for any harm or damage arising out of or in connection with a Beta Service.
2.6 Trial Subscriptions. From time to time, Built.io may offer trial subscriptions for new Services or to new Customers at no charge (“Trial Subscriptions”). Notwithstanding anything to the contrary in this Schedule or the Agreements, the Term of a Trial Subscription shall be set forth in the Order, but shall not exceed 90 days, after which, Customer may order Purchased Services under the terms of this Schedule for a Fee. Built.io reserves the right to change the availability and term of the Trial Subscription at any time. After the termination of the Trial Subscription term, Customer acknowledges that Built.io may delete any Customer Data at any time. For Customer choosing to use a Trial Subscription, Customer agrees to be bound by all the obligations, terms and conditions of the Agreement and this Schedule. CUSTOMER AGREES THAT TRIAL SUBSCRIPTIONS ARE OFFERED “AS IS” AND BUILT.IO SPECIFICALLY DISLCAIMS ANY AND ALL WARRANTIES IMPLIED OR EXPRESS WITH RESPECT TO THE TRIAL SUBSCRIPTIONS, INCLUDING, BUT NOT LIMITED TO HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
2.7 Trial Subscriptions and Beta Services Release. Customer and its directors, employees, agents, representatives and assigns agree to release Built.io from any liability for any claims, damages or legal causes of action arising from the use of the Trial Subscription or Beta Services. In doing so, Customer acknowledges that they are familiar with Section 1542 of the California Civil Code, which provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known to him or her, must have materially affected his settlement with the debtor."
Customer and its directors, employees, agents, representatives and assigns agree hereby waive and relinquish all rights and benefits which they have or may have under Section 1542 of the California Civil Code, or the law of any other state or jurisdiction to the same or similar effect to the fullest extent that they may lawfully waive all such rights and benefits pertaining the Services.
3. USE OF SERVICES
3.1. Subscriptions. Unless otherwise provided in the applicable Order, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.3. Usage Restrictions. Customer will not (a) make any Service available to, or use any Service for the benefit of, anyone other than Customer, its affiliates and Users, (b) sell, resell, license, sublicense, distribute, rent or lease any, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, defamatory, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy, intellectual property or proprietary rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) engage in phishing or posting illegal content including, without limitation, child pornography or make fraudulent representations, (h) copy a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation, (j) access any Service in order to build a competitive product or service, (k) reverse engineer any Service (to the extent such restriction is permitted by law), (l) utilize the Service to violate any statute, rule, regulation, code or ordinance.
3.6. Removal of Non-Built.io Applications or unlawful content. If Built.io is required by law to remove content, or receives information that content posted or displayed by Customer may violate applicable law or third-party rights, Built.io may so notify Customer and in such event Customer will promptly remove such content from Customer’s systems, but Built.io reserves the right to remove the content, block access to it, or terminate the Services immediately upon notice. If Built.io receives information that non-Built.io Application hosted on a Service by Customer violates Built.io’s External-Facing Services or applicable law or third-party rights, Built.io may so notify Customer and in such event Customer will promptly disable such Non-Built.io Application or modify the Non-Built.io Application to resolve the potential violation. If Customer does not take required action in accordance with the above, Built.io may disable and/or remove the content, Service and/or Non-Built.io Application until the potential violation is resolved.
4. NON-BUILT.IO PROVIDERS
4.1. Acquisition of Non-Built.io Products and Services. Built.io or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, but not limited to, Non-Built.io Applications and implementation and other consulting services. Any acquisition by Customer of such Non-Built.io products or services, and any exchange of data between Customer and any Non-Built.io provider, is solely between Customer and the applicable Non-Built.io provider. Customer acknowledges that access to Non-Built.io Applications or other products or services is dependent on Customer’s acquisition of such Non-Built.io Applications, products or services. Built.io does not warrant or support Non-Built.io Applications or other Non-Built.io products or services, whether or not they are designated by Built.io as “certified” or otherwise nor can Built.io guarantee that the Services will function or integrate with Non-Built.io Products and Services.
4.2. Non-Built.io Applications and Customer Data. If Customer installs or enables a Non-Built.io Application for use with a Service, Customer grants Built.io permission to allow the provider of that Non-Built.io Application to access Customer Data as required for the interoperation of that Non-Built.io Application with the Service. Built.io is not responsible for any disclosure, modification, transmission or deletion of Customer Data resulting from access by a Non-Built.io Application.
4.3. Integration with Non-Built.io Applications. The Services may contain features designed to interoperate with Non-Built.io Applications. To use such features, Customer may be required to obtain access to Non-Built.io Applications from their providers, and may be required to grant Built.io access to Customer account(s) on the Non-Built.io Applications. If the provider of a Non-Built.io Application ceases to make the Non-Built.io Application available for interoperation with the corresponding Service features on reasonable terms, Built.io may cease providing those Service features without entitling Customer to any refund, credit, or other compensation.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Fees. Where Built.io charges fees for the Services, Customer will pay all fees specified in Orders. Except as otherwise specified herein or in an Order, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. If requested by Built.io, Customer will provide Built.io with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Built.io. If Customer provides credit card information to Built.io, Customer authorizes Built.io to charge such credit card for all Purchased Services listed in the Order for the initial subscription term and any renewal subscription term(s) as set forth in Section 8.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card, Built.io will invoice Customer in advance and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, invoiced charges are due net thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Built.io and notifying Built.io promptly of any changes to such information. At Built.io’s option in its sole discretion, Built.io may, in its sole discretion choose to accept payment through a system with a valid purchase order or alternative document reasonably acceptable to Built.io. In such case, Built.io will invoice Customer in advance and otherwise in accordance with the relevant Order. Unless expressly set forth otherwise, all amounts due Built.io are payable up front and due immediately upon agreement to the Order.
5.3. Overdue Charges. If any invoiced amount is not received by Built.io by the due date, then without limiting Built.io rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Built.io may condition future subscription renewals and Orders on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If Customer breaches this Agreement or this Schedule without curing it within 10 days of receiving notice of such breach, or if any amount owing by Customer under this or any other schedule for Built.io services is 30 or more days overdue, Built.io may, without limiting Built.io other rights and remedies, accelerate Customer unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Built.io services to Customer until such amounts are paid in full. Built.io will give Customer at least 10 days’ prior notice that Customer account is overdue, in accordance with Section 12.1 (Manner of Giving Notice), before suspending services to Customer.
5.5. Taxes. Built.io fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes that Customer is required to pay under applicable law as a result of Customer purchases hereunder. If Built.io have the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 6.6, Built.io will invoice Customer and Customer will pay that amount unless Customer provide Built.io with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Built.io is solely responsible for taxes assessable against Built.io based on Built.io income, property and employees.
5.6. Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Built.io regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Built.io and Built.io licensors reserve and retain all of their right, title and interest in and to the Services, including all of Built.io/their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2. License for Services. Upon Built.io’s acceptance of the Order and for the duration of the period set forth in the Order, Built.io grants to Customer a worldwide, limited-term license, under Built.io’s applicable intellectual property rights and licenses, to use the Services licensed to Customer pursuant to Orders, subject to those Orders, the Schedule and the Agreement.
6.3. License by Customer to Host Customer Data and Applications. Customer grants Built.io and Built.io Affiliates a worldwide, limited-term license to host, copy, transmit and display Customer Data, and any Non-Built.io Applications and program code created by or for Customer using a Service, as necessary for Built.io to provide the Services in accordance with this Schedule and the Agreement. Subject to the limited licenses granted herein, Built.io acquires no right, title or interest from Customer or Customer licensors under this Schedule in or to Customer Data or any Non-Built.io Application or program code.
6.4. License by Customer to Use Feedback. Customer grants to Built.io and Built.io Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Services.
6.5. Access to Customer systems. Customer grants Built.io the right to access its data (including, without limitation, Customer Data), networks and systems for the purposes of providing the Services, whether owned or operated by Customer or by third parties contracting with Customer.
6.6. Ownership of Services, changes to Built.io Privacy Policies, and External Facing Website Policies and Subscription Terms. With the exception of Customer Data, Customer acknowledges that as between Built.io and Customer, Built.io owns all right, title and interest in the Services. Built.io reserves the right to change or amend this Schedule, the Agreement, Built.io Privacy Policies, Terms of Service, External Facing Website policies or these terms and at any time. Built.io will provide reasonable written notice to Customer of any material changes.
6.7. Limitations on access. Built.io reserves the right to reduce, limit or throttle the number of Users, amount of data, access or throughput in connection with the Services as long as it does not affect the core functionality of the Service.
6.8. Changes to Functionality. Built.io reserves the right, in its sole discretion to alter or delete any functionality contained in the Services at any time.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS.
7.1. Representations. Each party represents that it has validly entered into the Agreement and has the legal power and authority to do so and that is has validly entered into the terms and conditions of this Schedule A.
7.2. Built.io Express Warranties. With respect to the provision of the Purchased Services, Built.io expressly warrants that (a) this Schedule and the applicable Order accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data for a particular Service, (b) Built.io will not materially decrease the overall security of the Purchased Services during a subscription term. For any breach of an above warranty, Customer must provide Built.io written notice within 30 days of the date upon which Customer became aware of the breach. Customer agrees that Customer exclusive remedies are those described in Section 7.3 of the Schedule.
7.3. CURE OF EXPRESS WARRANTIES.
WITH RESPECT TO THE PROVISION OF PURCHASED SERVICES, IN THE EVENT OF THE BREACH OF SECTION 2.1 OF THIS SCHEDULE OR ANY EXPRESS WARRANTY UNDER THIS SCHEDULE OR THE AGREEMENT BY BUILT.IO, BUILT.IO SHALL HAVE TEN (10) DAYS TO CURE UPON NOTICE FROM CUSTOMER, AND IN THE EVENT SUCH WARRANTY CAN NOT BE CURED IN SUCH TIME, BUILT.IO WILL REMIT A SERVICES FEE CREDIT TO CUSTOMER CALCULATED AT, AND NOT TO EXCEED AN AGGREGATE AMOUNT OF TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH ANY APPLICABLETHE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO BUILT.IO, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT CUSTOMER’S EXCLUSIVE REMEDY, AND BUILT.IO’S SOLE LIABILITY, FOR ALL BREACHES OF THIS SECTIONS 2.1 OR 78.2 OF THE SCHEDULE OR ANY OTHER EXPRESS WARRANTY FOR THE PURCHASED SERVICES, INCLUDING THOSE CONTAINED IN THE AGREEMENT.
8. TERM AND TERMINATION.
8.1. Term of Schedule. This Schedule commences on the date of signature by both parties as set forth below and continues until all subscriptions hereunder have expired or have been terminated.
8.2. Term of Purchased Subscriptions. The Term of Purchased Subscriptions shall be for the term set forth in the applicable Order, after which Built.io reserves the right to immediately terminate the Service, and may, in its sole discretion, offer such Services under different terms.
8.3. Termination. A party may terminate this Schedule for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9. OTHER TERMS
9.1. Customer Data Portability and Deletion. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Schedule, Built.io will make the Customer Data available to Customer for export or download as provided in the Documentation. After that 30-day period, Built.io will have no obligation to maintain or provide Customer Data, and may in its sole discretion thereafter delete or destroy all copies of Customer Data in Built.io’s systems or otherwise in Built.io’s possession or control as provided in the Documentation, unless legally prohibited.
9.2. Surviving Provisions. The Agreement, and Schedule Sections Sections titled “Beta Services,” "Fees and Payment for Purchase Services," "Reservation of Rights, “Cure of Express Warranties," "Portability and Deletion of Customer Data," and "Other Terms", as well as an applicable and/or surviving terms of the Agreement will survive any termination or expiration if this Schedule or the Agreement.
9.3. Limited Applicability. The terms and conditions contained in this Schedule shall solely be applicable to the Services described herein and for any Order issued pursuant to this Schedule.