Software License and Services Agreement

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE.

BY USING THE SOFTWARE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.

This agreement is between AccuBuild IT, LLC, a Delaware limited liability company (AccuBuild), and the Customer agreeing to these terms (Customer). The AccuBuild software, modification, enhancements, documentation, and license keys provided to Customer (Software) are licensed and are not sold.

1. SCOPE.

This agreement describes the licensing of the Software and Support provided to Customer under an order. Implementation services (Implementation Services) may also be provided by AccuBuild if specified under an order.

(Optional) Hosted Services. If specified under an order, AccuBuild will host the Software and provide the functionality of the Software to Customer as a service for the duration specified in the order (Hosted Services). If Customer desires AccuBuild to provide a Hosted Service, then the order associated will reflect such purchase, subject to the following terms:

a. AccuBuild will install the Software on the hosted environment and will use commercially reasonable efforts to provide Customer with access to the functionality of the Software on a remote basis;
b. Customer must keep confidential all passwords to the Hosted Services and will be responsible for all activity in its account;
c. AccuBuild may suspend the Hosted Service: (i) for scheduled maintenance; (ii) if required by law; (iii) if Customer uses the Software in an illegal manner; and (iv) during an event beyond the reasonable control of AccuBuild; and
d. AccuBuild will make available to Customer the Customer data stored within the Software at the termination of the Hosted Services as allowed by the functionality of the Software

2. LICENSE.

Subject to the other terms of this agreement, AccuBuild grants Customer, under an order, a perpetual, non-exclusive, non-transferable license up to the license capacity purchased to use the Software only in Customer’s internal business operations.

3. DISCLAIMER.

ACCUBUILD DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER UNDERSTANDS THAT THE SOFTWARE, IMPLEMENTATION SERVICES AND HOSTED SERVICES MAY NOT BE ERROR FREE, AND USE OF THE SOFTWARE MAY BE INTERRUPTED.

4. PAYMENT.

Customer will pay all fees due on receipt of an invoice, unless otherwise provided on an order, plus applicable sales, use, withholding, VAT, and other similar taxes.

5. MUTUAL CONFIDENTIALITY.

a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, 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). AccuBuild’s Confidential Information includes, without limitation, the Software, its user interface design and layout, and pricing information.

b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

6. PROPERTY

a. Reservation of Rights. The Software, workflow processes, user interface, designs, technical documentation, and other technologies provided by AccuBuild as part of the Software are the proprietary property of AccuBuild and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with AccuBuild and its licensors. The Software is protected by applicable copyright and other intellectual property laws. Customer may not remove any product identification, copyright, trademark, or other notice from the Software. AccuBuild reserves all rights unless expressly granted in this agreement.

b. Restrictions. Customer may not: (i) transfer, assign, sublicense, rent the Software, create derivative works of the Software, or use it in any type of service-provider environment; (ii) reverse engineer, decompile, disassemble, or translate the Software; (iii) evaluate the Software for the purpose of competing with AccuBuild; or (iv) operate the Software other than in accordance with its technical documentation.

7. TERM AND TERMINATION

a. Term. This agreement expires at the end of the license period specified in the accompanying order.

b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

c. Return AccuBuild Property Upon Termination. Upon termination of this agreement or a license for any reason, Customer must discontinue using the Software, de-install, and destroy or return the Software and all copies within 5 days. Upon AccuBuild’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

8. LIABILITY LIMIT

a. Exclusion of Indirect Damages. AccuBuild is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.

b. Total Limit on Liability. AccuBuild’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the greater of the amount paid or payable by Customer within the 12-month period prior to the event that gave rise to the liability.

AccuBuild’s annual technical support and maintenance services (Support) is included with new license purchases for a period of 1 year. Support may be provided in subsequent years if Customer and AccuBuild agree on the support renewal for that year. Support is provided under the Support policies then in effect. AccuBuild may change its Support terms, but Support will not materially degrade during any Support term. More details on Support are located at https://accu-build.com/clients/support/

10. GOVERNING LAW AND FORUM.

This agreement is governed by the laws of the State of Delaware (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for New Castle County, Delaware, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

11. OTHER TERMS

a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by AccuBuild.
b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
c. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
f. No Additional Terms. AccuBuild rejects additional or conflicting terms of a Customer’s form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h. Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Compliance Audit. No more than once in any 12-month period and upon at least 30 days’ advance notice, AccuBuild (or its representative) may audit Customer’s usage of the Software at any Customer facility. Customer will cooperate with such audit. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Software in excess of the license.
j. Export Compliance. Customer must comply with all applicable export control laws of the United States, foreign jurisdictions, and other applicable laws and regulations.
k. U.S. Government Restricted Rights. If Customer is a United States government agency or acquired the license to the Software hereunder pursuant to a government contract or with government funds, then as defined in FAR §2.101, DFAR §252.227-7014(a)(1), and DFAR §252.227-7014(a)(5), or otherwise, all Software provided in connection with this agreement are “commercial items,” “commercial computer software,” or “commercial computer software documentation.” Consistent with DFAR §227.7202 and FAR §12.212, any use, modification, reproduction, release, performance, display, disclosure, or distribution by or for the United States government is governed solely by the terms of this agreement and is prohibited except to the extent permitted by the terms of this agreement.
l. Open Source Software Licenses. The Software may contain embedded open source software components, which are provided as part of the Software and for which additional terms may be included in the technical documentation.
m. Feedback. If Customer provides feedback or suggestions about the Software, then AccuBuild (and those it allows to use its technology) may use such information without obligation to Customer.

Last Revised [08.26.2020].

The Technical Support Service Level Agreement for these services can be found at https://accu-build.com/clients/support/

Software License and Services Agreement