BuildTools Terms & Conditions

1.1 "Affiliate" means any entity that is controlled by or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.

1.2 "Agreement" means these terms and conditions, any exhibit attachment or addendum to these terms and conditions, and all Order Forms entered into by the parties from time to time.

1.3 "Authorized Party" means (a) individual employees and contractors under the control of Customer that Customer has authorized to access or use the Software subject to the terms of this Agreement and solely to assist Customer in exercising its rights under this Agreement, but for the avoidance of doubt shall not include any individual or entity offering consulting services (e.g., implementation, customization, training, etc.); and (b) Customer's legal or tax advisors, or to the extent Customer is compelled to allow access pursuant to a court order or similar legal process, and then solely to the extent necessary to comply with such court order or similar legal process.

1.4 "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. BuildTools Confidential Information includes without limitation the Software, Documentation and any Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party.

1.5 "Concurrent User Limit" where applicable, means the maximum number of concurrent logins to the Software as established in a registration file provided to Customer by BuildTools or a third party licensor.

1.6 "Content" means, without limitation, materials, information, artwork, graphics, images, text, software and data used, transmitted and/or displayed by Customer in connection with use of the Software and/or any Services.

1.7 "Correction" means a patch or other remedial measures prepared by BuildTools to bypass or remedy an error (as determined by BuildTools) in the Software, which BuildTools determines at its sole discretion (regarding the content and timing of release) to make available without additional charge to its customers purchasing Support.

1.8 "Customer" means the single individual or entity referenced in the applicable Order Form. In the event the Customer is a legal entity, the term "Customer" shall include any Affiliate of Customer.

1.9 "Data" means all data, including Personal Data and Non-Personal Data.

1.10 "Data Protection Legislation" means all applicable laws, rules and regulations regarding data protection and the privacy of electronic communications, in each case as amended or updated from time to time. "Controller," "Data Subject," "Personal Data" and "Processor" shall each have the meanings as defined in the applicable Data Protection Legislation.

1.11 "Documentation" means materials, in written or other tangible form (including on magnetic media), provided by BuildTools on or after the Effective Date that describe the Software functional or technical specifications, which may include user guides, installation instructions and operation guides.

1.12 "Effective Date" means the date this Agreement was accepted by Customer.

1.13 "Export Control Laws" means (a) United States export control laws and United States laws governing exports of controlled commodities, software or technology, embargoes, sanctions and boycotts, including, but not limited to, the Arms Export Controls Act, the International Emergency Economic Powers Act, the Trading With the Enemy Act, the Export Administration Act of 1979, and all rules, regulations and executive orders relating to any of the foregoing; and (b) all similar applicable laws, statutes and regulations in countries where Customer conducts business.

1.14 "Hosting Services" means a party's hosting of the Software.

1.15 "Initial Term" means: the initial term set forth in the applicable Order Form (or if no initial term is set forth in the applicable Order Form, then the initial term is one (1) year from the Effective Date.

1.16 "Intellectual Property Rights" means worldwide common law and statutory rights associated with (a) patents and patent applications of any kind; (b) copyrights, copyright registrations and copyright applications, "moral", "economic" rights and mask work rights; (c) the protection of trade and industrial secrets and confidential information; (d) logos, trademarks, trade names and service marks; (e) any other proprietary rights relating to any technology; and (f) any other proprietary rights anywhere in the world.

1.17 "Malicious Software" means any software that may disrupt computer operations, gather sensitive information or gain access to private computer systems, which may appear in the form of code, scripts, active content or other software, and includes, but is not limited to, viruses, worms, trojan horses and spyware.

1.18 "Named User Limit" where applicable, means the maximum number of specific employees that may be designated by Customer to use the Software, as established in a registration file provided to Customer by BuildTools or a third party licensor, regardless of whether such individual may be actively using the Software at any given time.

1.19 "Professional Services" means any consulting services (e.g., implementations, installations, customizations, training, etc.) provided by BuildTools to Customers for Software (other than Support), and subject to the terms of an Order Form and the Professional Services Addendum attached hereto as Exhibit B.

1.20 "Non-Personal Data" means anonymous transaction data compiled from Customer and/or other users of the Software and/or Services (including, without limitation, transaction data derived from Customer's use of the Software and/or Services) that does not specifically identify Customer or its customers.

1.21 "Order Form" means any quotation, proposal, or transactional document issued by BuildTools, detailing Software and/or Services provided by BuildTools, and accepted by Customer in writing, which is incorporated into and becomes a part of this Agreement.

1.22 "Services" means (a) Hosting Services, (b) Professional Services, and (c) Support.

1.23 "Software" means the BuildTools software platform and any Third Party Software integrated therewith.

1.24 "SOW" means any statement of work associated with any Professional Services provided by BuildTools pursuant to this Agreement.

1.25 "Standard Release Software" means the Software excluding any modifications, whether such modifications are made by BuildTools, Customer or any other party.

1.26 "Support" means the Software maintenance and support services set forth in Exhibit A.

1.27 "Term" means the Initial Term plus any renewals thereof in accordance with Section 15.

1.28 "Third Party Software" means computer software proprietary to a third party not affiliated with BuildTools, and subject to an end user license agreement ("EULA") or other licensing terms of such third party, which Third Party Software is specified in an Order Form, embedded in the Software, or provided to Customer by such third party.

1.29 "Update" means a subsequent release of the Software that incorporates BuildTools-initiated improvements, Corrections, or enhancements in the performance characteristics of the Software, designated by a change in release numbering solely to the right of the first decimal point (e.g., X.2, X.3, etc.) or by a change in batch number, which may be released by BuildTools from time to time in its sole discretion at no additional cost to customers purchasing Support. Updates do not include Upgrades.

1.30 "Upgrade" means a subsequent release of a new version of the Software that incorporates major revisions such as new and/or different functions or capabilities and designated by a change in version number solely to the left of the first decimal point (e.g., 9.X, 10.X, etc.), which may be released by BuildTools from time to time in its sole discretion subject to applicable fees established by BuildTools.

1.31 "Work Product" means all work product, developments, inventions, technology, materials or other deliverables provided to Customer in connection with any Professional Services.