These Terms of Purchase (these “Terms”) govern a Customer’s acquisition and use of BuildingLink Services (as defined below) provided by BuildingLink.com, LLC, a Delaware limited liability company with an address of 85 Fifth Avenue, New York, N.Y., 10003 (“BuildingLink”). By executing an Order Form that references these Terms or by using or accessing any free BuildingLink Services, Customer agrees to these Terms. Each of BuildingLink and Customer may be referred to in these Terms as a “Party” and collectively as the “Parties.”
- Definitions. Unless otherwise defined in these Terms or the Order Form, capitalized terms used herein shall have the meanings set forth in Section 13.
- Purchase of BuildingLink Services.
- Customer desires to purchase, access and use and permit its tenants or apartment owners or shareholders of a Property, Customer’s Board of Directors, other similar entities and their respective authorized representatives, as applicable, (collectively “Permitted Users”) to access, and have use of, BuildingLink Services as specified in an applicable Order Form entered into by and between Customer and BuildingLink.
- Subject to and conditioned on Customer’s and its Permitted Users’ compliance with the terms and conditions of (i) the applicable Order Form, (ii) these Terms, (iii) any applicable Product Specific Terms, and to the extent applicable, (iv) the Data Processing Agreement (collectively, with an applicable Order Form, these Terms and any applicable Product Specific Terms, the “Agreement”), BuildingLink shall provide Customer with the BuildingLink Services set forth in an applicable Order Form.
- Product Specific Terms apply to specific BuildingLink Services and are available at https://www.buildinglink.io/legal-resources/product-specific-terms (the “Product Specific Terms”). The Product Specific Terms are incorporated into these Terms by reference.
- Customer acknowledges and agrees that:
- it has reviewed the BuildingLink Services set forth in the applicable Order Form and is reasonably familiar with the nature and scope of such BuildingLink Services, and with the nature and reliability of the support and training services BuildingLink provides with respect to such BuildingLink Services;
- it shall use the BuildingLink Services upon the terms and conditions set forth in the Agreement; and
- it has taken all action necessary to authorize Customer’s entry into the Agreement and the performance of its obligations hereunder.
3. Subscriptions and One Time Purchases.
- One Time Purchases. Certain BuildingLink Services are offered to Customer as an individual purchase, such as the purchase of certain add on services, software, hardware, or additional per hour training services.
- Subscription Services. Certain BuildingLink Services are offered as a subscription to software-as-a-service (“Subscription Services”) during the period that extends from the Start Date through the End Date set forth in an applicable Order Form (each, a “Subscription”). Unless otherwise set forth in an applicable Order Form, on each anniversary of the End Date for each Subscription, the BuildingLink Services associated with each such Subscription shall automatically renew on an annual basis (each, a “Renewal Subscription”), unless the Order Form is terminated pursuant to the provisions of the Agreement or the Order Form.
4. Fees and Payment Terms.
- Customer agrees to pay all fees for any BuildingLink Services, including any associated Direct Costs, as set forth in an applicable Order Form (collectively, the “Fees”). Unless otherwise specified in an Order Form, Fees are quoted and payable in U.S. dollars.
- Payment Terms. Fees are due and payable according to the payment terms set forth in the applicable Order Form. If payment terms are not specified in the applicable Order Form, Fees shall be billed in full at the Order Form Effective Date and are payable net thirty (30) days from date of invoice. Any payment not received within thirty (30) days of the date due shall bear interest from the date due at the rate of one percent (1%) per month (prorated for partial periods) or the maximum rate permitted by applicable law, whichever is less. If Fees greater than thousand dollars ($3,000) are paid via credit card, an additional charge equal to three percent (3%) of the invoiced amount shall apply.
- Renewal Subscriptions. With respect to each new Renewal Subscription, Fees shall automatically increase by five percent (5%) over the Fees for the prior year (the “Renewal Fee”).
- Fees do not include any applicable sales, VAT, country specific withholding taxes applicable to foreign suppliers or any other use taxes (collectively, “Taxes”), regardless of whether such Taxes are included on an invoice or required by law to be included in the Fees. If BuildingLink has a legal obligation to pay or collect Taxes for which Customer is responsible, Taxes will be invoiced to and paid by Customer, unless a valid tax exemption certificate authorized by the appropriate taxing authority is provided annually to BuildingLink. Customer shall indemnify, defend, and hold BuildingLink harmless from all claims, liabilities and expenses arising out of Customer’s failure to pay any such Taxes. BuildingLink is solely responsible for taxes assessed based on BuildingLink’s income, property, and employees.
- If VAT taxes are applicable to Fees, Customer shall (i) promptly provide to BuildingLink in writing a valid VAT registration; (ii) indicate in which European Union member state VAT applies; (iii) confirm that Customer is purchasing the BuildingLink Services for private purposes and (iv) provide any other information reasonably requested in connection with BuildingLink’s VAT reporting obligations. Customer shall inform BuildingLink of any change in VAT information previously provided to BuildingLink as soon as reasonably practicable after any such change. If Customer defaults in complying with Customer’s obligations under this paragraph, and as a result, BuildingLink incurs any interest or penalties relating to VAT, Customer will pay BuildingLink upon receipt of invoice the amount equal to any interest and penalties.
- Fee Changes. In addition to the Renewal Fee, BuildingLink may, in its discretion, increase its Fees from time to time following the term of the initial Subscription. In the event of such increased Fees, Customer’s sole remedy is to terminate the Agreement or the applicable Order Form pursuant to Section 7(b) of these Terms (Termination for Convenience).
- Costs of Collection. If BuildingLink or its Affiliates takes any action whatsoever to collect any unpaid balance due from Customer, including whether such action is taken at law or through an attorney-at-law, or through a collection agency, Customer agrees to pay all reasonable costs and expenses related to any such collection, including, without limitation, all reasonable court, arbitration or mediation costs, all litigation expenses, and fees and expenses of attorneys and/or collection agencies incurred by BuildingLink. BuildingLink shall be entitled to invoice Customer for all such costs and expenses, and Customer shall pay such invoice net thirty (30) days from receipt. Any payment not received within thirty (30) days of the date due shall bear interest from the date due at the rate of one percent (1%) per month (prorated for partial periods) or the maximum rate permitted by applicable law, whichever is less.
- Fees Based on Purchase, Not Use. All Fees are based on BuildingLink Services purchased, and not actual usage. With respect to Subscription Services, all BuildingLink Services must be consumed during the applicable Subscription. No refund of prepaid Fees or any reduction in Fees is available if Permitted Users do not access the Subscription Services.
5. Intellectual Property Rights, Permitted Use and Restrictions.
- Intellectual Property Rights.
- BuildingLink, its Affiliates, and its third-party licensors shall retain all right, title, and interest in and to their Confidential Information (as defined below) and to the BuildingLink Services (or any component thereof) worldwide including, without limitation, ownership of all copyrights, trademarks, patents, look and feel, trade secret rights and any other intellectual property rights recognized under any applicable law therein (collectively, “Intellectual Property Rights”).
- Customer shall retain all right, title, and interest in and to (A) its Confidential Information; (B) any data, documentation, records, listings, offers, statements, advice, signatures or other information relating specifically to the Customer and to affairs relating to the management, operation or use of the Customer which from time to time is posted on or made accessible through the BuildingLink Services (collectively, “Property Information”); and (C) any information derived from the use of the BuildingLink Services by Customer or a Permitted User where the individual identity of Customer, such Permitted User or the Property can readily be derived from such information (collectively, “Identifying Information”) including, without limitation, all Intellectual Property Rights in any of the foregoing.
- Notwithstanding anything to the contrary in this Agreement, during and after the Term of this Agreement, Customer hereby grants to BuildingLink a perpetual, irrevocable, paid-up, royalty-free, limited, nonexclusive, non-sublicensable worldwide right and license to copy, create derivative works of, modify and otherwise use any Property Information or other data provided to BuildingLink or that is generated through the use of the BuildingLink Services hereunder. All other Intellectual Property Rights thereto are expressly reserved by Customer.
- Permitted Use.
- BuildingLink Services may be used only in connection with (A) the maintenance, management, operation and use of the Property; (B) the facilitation of communications, record keeping and task tracking relating to matters affecting the maintenance, management, operation, and use of the Property; (C) facilitating board meetings for properties which entails such tasks as sending notices, distributing materials, managing proxies, gathering votes, tabulating results, and offering a virtual meeting platform; and (D) access thereto or use of the Property between and among the various Permitted Users and for no other purpose.
- Customer agrees not to sublicense, rent, sell, loan, give or otherwise make available all or any part of the BuildingLink Services to any party other than Customer and its Permitted Users and not to sell, rent or otherwise exploit access to the BuildingLink Services for any commercial purpose other than as set forth in the Agreement. Customer specifically agrees not to (A) distribute or otherwise make the BuildingLink Services available to the public or any third parties other than Permitted Users or allow any such third parties to access the functionality of the BuildingLink Services; (B) rent, lease, sell, lend or encumber the BuildingLink Services; (C) modify, copy, decompile, make derivative works of or reverse engineer any source code or any other part of the BuildingLink Services included in the BuildingLink Services by any means whatsoever or any attempt to do the same; (D) access or use the BuildingLink Services for purposes of competitive analysis of the BuildingLink Services, or for the development, provision, or use of a competing software service or product; or (E) act or permit action that would in any way impair the rights of BuildingLink in the BuildingLink Services or otherwise under the Agreement.
- Customer acknowledges and agrees that BuildingLink will not be responsible for, and does not control, the quality, truth, accuracy, or legality of any Property Information, and that BuildingLink will have no obligation to review any Property Information, whether posted by Customer, any Permitted User, or any other party.
- Minors may not use the BuildingLink Services except in conjunction with a parent or guardian, and where Customer becomes aware of minors using the BuildingLink Services it shall take all reasonable steps to remedy this violation.
- Customer covenants that it will not upload or transmit, nor will it authorize or knowingly enable any Permitted User, to upload, post, transmit or otherwise publish through the BuildingLink Services any materials or information:
- which are unlawful, threatening, abusive, libelous, slanderous, defamatory, harassing, tortuous, racially, ethnically, or otherwise objectionable, sexually explicit, or indecent;
- which constitute or encourage conduct that would give rise to civil liability or violate law, including without limitation, pursuant to the Fair Housing Act (42 USC § 3601 et seq.) or any other federal, state, or local laws or regulations prohibiting discriminatory housing practices;
- which violate, plagiarize, or infringe the rights of third parties including, without limitation, third-party Intellectual Property Rights, rights of privacy or publicity or any other proprietary rights;
- which to Customer’s knowledge contain a virus or other harmful component designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- which constitutes personal health information;
- which constitutes payment card information, excluding the last 4 digits of any such card;
- for which Customer or the Permitted User, as applicable, does not have all necessary rights and licenses to transmit under any law or under any contractual or fiduciary relationship; or
- which constitute or contain false or misleading indications of origin or statements of fact.
- Notwithstanding anything to the contrary in the Agreement, Customer agrees that BuildingLink will be entitled to suspend or terminate BuildingLink Services if in its reasonable discretion the terms of this Section 5 continue to be violated for a period of seven (7) calendar days after providing notice to Customer of such violation. Notwithstanding anything to the contrary in the Agreement, BuildingLink will have the right (but not the obligation) to review and to remove immediately any materials or information that BuildingLink determines, in the exercise of its sole discretion, constitutes material or information described in any of Section 5(c)(iii); provided, however, that in the event of any such removal, BuildingLink will notify Customer, as promptly as practicable, of such removal.
- If Customer or any of its employees, contractors or Permitted Users sends or transmits any communications or materials to BuildingLink suggesting or recommending changes to the BuildingLink Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), BuildingLink is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to BuildingLink on Customer’s behalf, and on behalf of its employees, contractors, agents and/or Permitted Users, all right, title, and interest in, and BuildingLink is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although BuildingLink is not required to use any Feedback.
6. Data Protection.
- Collection and Disclosure.
- Third Parties.BuildingLink may disclose Identifying Information to third parties only if BuildingLink or its Affiliate: (A) is party to a merger, acquisition, or divestiture; (B) contracts with a third party to provide certain services on behalf of BuildingLink or its Affiliate; or (C) is required to disclose Identifying Information to comply with any legal obligation. Under (A) and (B) above, BuildingLink or its applicable Affiliate shall contractually require such third party to provide the same level of protection for Identifying Information required under these Terms and any applicable data protection laws.
- Data Breach.BuildingLink shall: (A) notify Customer of any unauthorized access to Identifying Information that could reasonably be expected to lead to or cause misuse of that Identifying Information (a “Data Breach”) within forty-eight (48) hours after discovery of the Data Breach; and (B) not notify any third parties of the involvement of Customer’s Identifying Information in the Data Breach without Customer’s prior permission, not to be unreasonably withheld. BuildingLink shall immediately investigate and take appropriate remedial actions to mitigate the effects of the Data Breach in accordance with applicable laws, regulations, and industry standards. Upon request, BuildingLink shall provide Customer with a summary report of its investigation and remediation activities.
- Data Processing Addendum.
- To the extent BuildingLink processes Personal Data from the European Economic Area, the United Kingdom and/or Switzerland or Personal Data that is subject to the protection of European Data Protection Laws, the Data Processing Addendum available at https://www.buildinglink.io/legal-resources/data-processing-addendum (the “DPA”) shall apply, including the applicable Standard Contractual Clauses as set out in the DPA, as applicable. With respect to the foregoing, Customer, or its Affiliates, as applicable, is the Controller of Personal Data Processed pursuant to the Services and BuildingLink is the Processor. Capitalized terms used in this Section 6(b) and not defined in this Agreement have the meanings given to such terms in the DPA.
- Data Transfer.Customer acknowledges and agrees that BuildingLink, its Affiliates and its Sub-Processors may access and Process Personal Data on a global basis and that BuildingLink and its Affiliates may transfer data (including Personal Data of Permitted Users) to the United States in connection with providing the BuildingLink Services.
- California Specific Provision
- Application: This California Specific Provision applies only to the extent that Customer or its Permitted Users: (a) is subject to the terms of the CCPA and/or the CPRA; and/or (b) uses the BuildingLink Services in a manner that means that the delivery of them by BuildingLink, and/or the use and access of them by Customer or its Permitted Users means that BuildingLink is a Service Provider to them under the terms of the CCPA and/or CPRA. Capitalized terms used in this Section 6(c) and not defined in this Agreement have the meanings given to such terms in the CCPA. BuildingLink shall not have any liability to Customer or any Permitted User to the extent the basis of liability arises from a violation of applicable law by Customer or any Permitted User, failure by Customer or any Permitted User to obtain necessary consents to use Personal Information, or failure by Customer or any Permitted User to fully comply with this Agreement, this California Specific Provision, the CCPA, and/or CPRA (collectively, “Failures”), and Customer shall indemnify, defend and hold BuildingLink and Sub-Processors harmless from any claims, demands, allegations, damages, losses, liabilities, fines, penalties, costs and expenses (including reasonable attorneys’ fees and costs) arising from such Failures.
- Where BuildingLink acts as a Service Provider, the disclosure of Personal Information to BuildingLink by Customer or its Permitted Users (and vice versa) in the course of the delivery of, use of and access to the BuildingLink Services does not, and shall not, constitute a Sale or Sharing. BuildingLink provides the BuildingLink Services in return for the valuable consideration provided by Customer through payment of the Fees. Access to, and use of, the BuildingLink Services is not provided in return for disclosure of Personal Information.
- Business Purposes. BuildingLink will process Personal Information only for the permissible Business Purposes of delivering the BuildingLink Services in accordance with the terms of this Agreement and the instructions that Customer or its Permitted Users give to BuildingLink through support requests and use of the tools provided by the BuildingLink Services.
7. Term and Termination.
a. Term. The term of the Agreement shall extend through the date of termination of the Agreement pursuant to these Terms (the “Term”). An applicable Order Form shall commence as of the last date of signature by both BuildingLink and the Customer (“Order Form Effective Date”) and will continue in effect through the last End Date of any Subscription or Renewal Subscription set forth therein unless the applicable Order Form is terminated as provided in these Terms or in the Order Form.
b. Termination for Convenience. Without limiting BuildingLink’s termination rights under Section 5(c)(iv), either Party may terminate the Agreement or any applicable Order Form for convenience by giving the other Party written notice of termination in which case termination shall take effect on the thirtieth (30th) calendar day following receipt of such written notice unless a later date has been specified by the terminating Party. Notwithstanding the foregoing, Customer may not terminate any BuildingBoard Services for convenience except with thirty (30) calendar days written notice prior to the End Date of the then current Subscription or Renewal Subscription.
c. Termination for Cause. Either Party may terminate the Agreement or any applicable Order Form upon written notice if the other Party: (i) materially breaches the Agreement and such breach is either incapable of cure or is not cured within thirty (30) calendar days after receipt of written notice of such breach or five (5) calendar days following written notice of breach for non-payment of Fees; (ii) becomes insolvent; or (iii) makes an assignment for the benefit of creditors. If BuildingLink terminates due to Customer’s breach, there shall be no refund of any portion of any Fees paid in advance by Customer. If Customer terminates due to BuildingLink’s breach, all prepaid Fees under any Order Forms then in effect will be refunded on a pro-rata basis up to the termination date. Any termination will be without prejudice to any rights or remedies of either Party which may have accrued up to the date of termination.
d. Substantial Breach. If Customer commits or authorizes or knowingly enables any Permitted User to commit a substantial breach of the Agreement or of the applicable End User Agreement and fails to cure the breach within two (2) calendar days after written notice from BuildingLink, BuildingLink, at its option, may terminate Customer’s right to receive any further BuildingLink Services immediately upon notice to Customer. Termination under the circumstances described in this paragraph, except as provided elsewhere in the Agreement, shall not limit, or otherwise affect the liability of Customer for any Fees.
e. Effect of Termination. Upon the termination or expiration of any Order Form(s), in whole or in part for any reason:
- all applicable BuildingLink Services and any access or use rights granted thereto will immediately terminate and all Permitted Users will immediately cease all use of the terminated BuildingLink Services;
- Except as provided in Section 7(c) or 7(d), BuildingLink will refund to Customer a prorated portion of any Fees paid in advance by Customer for BuildingLink Services in respect of any period from and after the date upon which the termination is effective;
- Notwithstanding Section 7(e)(ii) above, no refund is available with respect to the KeyLink System except as set forth in the Product Terms with respect to defective KeyLink Hardware. If Customer no longer wishes to use the KeyLink System, termination of the KeyLink Annual Maintenance Agreement shall be governed by Section 7(e)(ii).
- BuildingLink shall, for a period of thirty (30) calendar days following the date of termination (such 30-day period, the “Availability Period”), make all Property Information available to Customer during normal business hours for downloading in a form reasonably useful to Customer or for reproduction and printing; and
- Customer agrees that BuildingLink will have no obligation or liability to Customer, any Permitted User or any other third party as a result of termination or expiration of an Order Form(s) other than as provided in subparagraphs 7(e)(i)-(iv), above, if applicable.
- Indemnification and Limitation of Liability.
- BuildingLink’s Indemnification of Customer from Infringement Claims. BuildingLink will indemnify, and hold Customer and, as applicable, its shareholders, directors, members, managers, employees and representatives, and any Permitted Users, their members, shareholders, directors, managers, employees and representatives, harmless from, any damages, liabilities, costs or expenses (including, without limitation, reasonable attorneys’ fees and the legal and other costs of enforcing this indemnification) resulting from any third-party claim that the BuildingLink Services infringes or violates any copyright or other intangible rights, provided that Customer or the Permitted User seeking indemnification, as applicable, promptly notifies BuildingLink of the matter, cooperates with BuildingLink as reasonably requested (at BuildingLink’s expense), and permits BuildingLink to control the investigation, defense and disposition of the same.
- Indemnification for Third Party Claims. Each Party agrees to the fullest extent permitted by law to indemnify and hold the other Party, and its members, managers, employees and representatives harmless from any losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and the legal and other costs of enforcing this indemnification) arising from any claim, demand, suit or proceeding made or brought by any third party (including, without limitation, any Permitted User) in connection with, or resulting from, any act or omission by the indemnifying party constituting a violation of the terms of the Agreement, or of the applicable End User Agreement, or the violation by Customer or any Permitted User of any law or the rights of any third party, provided, that the party subject to the claim or suit promptly notifies the indemnifying party of the matter, cooperates with the indemnifying party as reasonably requested (at the indemnifying party’s expense) and permits the indemnifying party to control the investigation, defense and disposition of the same. The indemnifying party is not permitted to enter into any settlement with respect to a claim other than one for purely money paid by indemnifying party with a full release of liability with respect to the indemnified party without the indemnified party’s prior written consent, which will not be unreasonably withheld.
- Special Indemnification.
- With respect to the provision of any BuildingLink Services that control or allow access or entry to any building, condominium, cooperative, property, community or other any other housing structure whatsoever or to any apartment, unit, common area or any other space within the foregoing, Customer agrees to the fullest extent permitted by law to indemnify, defend and hold BuildingLink, and its members, managers, employees and representatives harmless from any losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and the legal and other costs of enforcing this indemnification) arising from any claim, demand, suit or proceeding made or brought by any party (including, without limitation, any Permitted User) in connection with, or resulting from, any allegation that any access or entry was improperly allowed by BuildingLink or pursuant to the BuildingLink Services. For the avoidance of doubt, Customer solely controls and is responsible for Property Information that allows BuildingLink to grant such access or entry and BuildingLink shall not be responsible under any circumstances for improper access or entry.
- Customer agrees to the fullest extent permitted by law to indemnify, defend and hold BuildingLink, and its members, managers, employees and representatives harmless from any losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and the legal and other costs of enforcing this indemnification) arising from any claim, demand, suit or proceeding made or brought by any party (including, without limitation, any Permitted User) in connection with, or resulting from, any allegation regarding any tallying or calculation of votes at a virtual meeting, improper transmission of notices or other communications, or other functions of BuildingLink in the provision of its BuildingLink Services.
- With respect to Section 8(c)(i) and (ii), BuildingLink shall cooperate with Customer as reasonably requested and permit Customer to control the investigation, defense, and disposition of the same. BuildingLink will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a claim. Customer is not permitted to enter into any settlement with respect to a claim other than one for purely money paid by Customer with a full release of liability with respect to BuildingLink without BuildingLink’s prior written consent, which will not be unreasonably withheld.
- In no event (including, but not limited to, negligence) will BuildingLink be liable to Customer or any Permitted User, whether in contract or in tort or under any other legal theory (including, without limitation, strict liability and negligence) for lost profits or revenues, loss or interruption of use, lost or damaged data, reports or documentation, unauthorized access to or alteration of transmissions of data, or similar economic loss, or for any indirect, special, incidental, consequential or similar damages, arising out of or in connection with the BuildingLink Services.
- BuildingLink’s total aggregate liability arising out of or in connection with the performance or contemplated performance under an applicable Order Form (whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise) shall in no event exceed the price paid by Customer to BuildingLink or its Affiliates under such Order Form within the twelve (12) month period immediately before the date of the event giving rise to the applicable claim. In all such cases, BuildingLink’s liability shall be limited to the greatest extent permitted by applicable law. Other than subparagraph 7(d)(i), nothing shall exclude or limit BuildingLink’s liability for: (A) death or personal injury caused by its or its Affiliate’s negligence; (B) fraud or fraudulent misrepresentation; or (C) any other matter for which it would be prohibited by applicable law to limit or exclude or attempt to limit or exclude liability.
- Access to the BuildingLink Services depends on third parties such as internet service providers. BuildingLink will have no liability to Customer for any loss suffered resulting directly or indirectly from: (A) failures of performance on the part of a third-party internet service provider or Customer or Permitted User’s technical or computer equipment; (B) scheduled systems upgrades or maintenance; or (C) any security breach of the BuildingLink Services other than solely due to BuildingLink’s negligence.
9. Confidential Information.
- During the Parties relationship with each other, each Party will have access to certain nonpublic information relating to a Party, that should reasonably be understood by the circumstances of disclosure, or by the nature of the information itself, to be proprietary and/or confidential including, but not limited to any information regarding the configuration or operation of the BuildingLink Services, including any user interface, templates, software, business plans and strategies; financial, pricing, product, or services information; technologies and software; and information concerning current, former or prospective employees, customers, vendors, licensees, licensors and relationships with each (collectively, “Confidential Information”). Each Party agrees: (i) not to disclose the Confidential Information of the other Party except to its employees, advisors, Affiliates, or licensors (and as to BuildingLink, to the parties set forth in Section 6(a)(iii)) on a need to know basis and only if each is bound by confidentiality obligations at least as restrictive as those contained in the Agreement; (ii) to use the Confidential Information strictly to receive or perform the BuildingLink Services; and (iii) to use the greater of (A) commercially reasonable endeavors to protect the confidentiality of the other Party’s Confidential Information or (B) the same degree of care it employs in maintaining its own Confidential information. The confidentiality obligations of each Party shall continue in force and survive the termination or expiration of the Agreement for a period of five (5) years after the expiration or earlier termination of the Agreement.
- Confidential Information does not include information which: (i) was already known by the receiving Party at the time of the disclosure by the disclosing Party; (ii) has otherwise become publicly available other than as a result of disclosure by the receiving Party in breach of the Agreement; (iii) was disclosed to the receiving Party on a non-confidential basis from a third party source other than the disclosing Party, which the receiving Party reasonably believes is not prohibited from disclosing such information; or (iv) is developed by the receiving Party independently of any disclosure as evidenced by written records. Notwithstanding the foregoing, a Party may disclose the Confidential Information of the other Party to the extent such Confidential Information is required to be disclosed by order of a court of competent jurisdiction, or by subpoena, summons or any other legal process; provided that, the receiving Party shall (A) so long as legally permissible, promptly notify the disclosing Party of such order and (B) at the written request of the disclosing Party, diligently contest such order at the sole expense of the disclosing Party.
- No License. The Party disclosing its Confidential Information grants no license under any Intellectual Property Rights by the disclosure of its Confidential Information. The Parties understand and acknowledge that Confidential Information is being provided by the disclosing Party without any representation or warranty, express or implied, as to the accuracy or completeness of such Confidential Information.
10. Representations and Disclaimer of Warranties.
- BuildingLink Representations. BuildingLink represents that the BuildingLink Services will materially conform to the specifications described in the applicable Order Form and that BuildingLink will perform the Services in good faith and in a professional manner.
- Customer Representations. Customer represents that Customer: (i) owns or has the right to provide to BuildingLink the Property Information, information with respect to Permitted Users and any and all other materials or information Customer provides to BuildingLink; (ii) will not store, upload into, or transmit through the BuildingLink Services any financial information or Identifying Information other than the minimum necessary to perform the BuildingLink Services purchased by Customer; (iii) is responsible for the conduct of Customer’s Permitted Users and their compliance with the Agreement; (iv) will not copy, reproduce, modify or adapt, translate, disassemble or reverse engineer, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute any portion of the BuildingLink Services in any form or media, or by any means, except as permitted under the Agreement; (v) will not cause confusion, deception or false associations with the BuildingLink Services; and (vi) shall comply with all applicable laws.
- DISCLAIMER OF WARRANTIES. THE BUILDINGLINK SERVICES ARE PROVIDED “AS IS” AND BUILDINGLINK DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUILDINGLINK DOES NOT WARRANT OR GUARANTEE THAT: (A) CUSTOMER WILL REALIZE ANY RESULTS BY VIRTUE OF ITS USE OF THE BUILDINGLINK SERVICES; (B) THE BUILDINGLINK SERVICES, PROPERTY INFORMATION OR INTEGRATED PARTNERSHIPS WILL BE ACCURATE, OR COMPLETE STATEMENTS OF FACT OR RELIABLE OR THAT ANY ERRORS WILL BE CORRECTED; OR (C) THE BUILDINGLINK SERVICES OR INTEGRATED PARTNERSHIPS OR THEIR USE BY CUSTOMER OR ITS PERMITTED USERS WILL BE IN COMPLIANCE WITH ANY APPLICABLE LAWS. BUILDINGLINK FURTHER DOES NOT WARRANT OR GUARANTEE CUSTOMER’S USE OF OR ITS PERMITTED USER’S USE OF ANY OF THE BUILDINGLINK SERVICES OR INTEGRATED PARTNERSHIPS OR ANY FEATURE THEREOF WILL BE FREE FROM ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION, TECHNICAL INACCURACIES, VIRUSES, OR OTHER HARMFUL CODE. THIS DISCLAIMER IS INTEGRAL TO ESTABLISHING PRICING AND CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. NOTWITHSTANDING ANYTHING IN THESE TERMS OR ANY ORDER FORM TO THE CONTRARY, BUILDINGLINK SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY OR ARISING AS A RESULT OF RELIANCE BY CUSTOMER OR ITS PERMITTED USERS UPON THE BUILDINGLINK SERVICES, INTEGRATED PARTNERSHIPS OR ANY FEATURES THEREOF.
- Acknowledgment Of Risk Allocation by Parties. Each Party acknowledges that the limitations of liability set forth in these Terms, as well as the provisions contained in this Section 10, reflect an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with the Agreement and the BuildingLink Services.
- Customer permits BuildingLink and its Affiliates to use Customer’s name and logo for their internal and external customer lists and other marketing materials.
- Entire Agreement. The Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and conditions of these Terms and any other document incorporated herein by reference, the following order of precedence shall apply: (i) the applicable Order Form, (ii) these Terms; (iii) the Data Processing Agreement; (iv) the Product Specific Terms; and (v) the applicable End User Agreement. Except as provided in Section 12(c) below, no amendment to or modification of the Agreement or any portion thereof, or action, or delay, will be binding unless in writing and signed by both Parties.
- Changes to the Agreement. BuildingLink can in writing modify, add, remove, or otherwise change any portion of these Terms, the Data Processing Agreement, the Product Specific Terms, and the applicable End User Agreement at any time, provided such modifications, additions, removals, or changes do not materially reduce the rights accorded to the Customer or its Permitted Users in the applicable document prior to such changes. Except as otherwise expressly provided in these Terms, the changes will become effective and will be deemed to have been accepted by Customer upon the public posting of such changes to the online versions of the foregoing documents.
- Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (i) government ordered quarantine or business closure; (ii) acts of God; (iii) flood, fire, earthquake, or explosion; (iv) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (v) government order or law; (vi) actions, embargoes, or blockades in effect on or after the date of this Agreement; and (vii) national or regional emergency (each, a “Force Majeure Event”). The party suffering a Force Majeure Event shall give notice within ten (10) calendar days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. If the Force Majeure Event continues for thirty (30) days after the date of such notice, either Party shall be entitled to terminate the Agreement.
- All notices and other communications under the Agreement must be in writing and will be deemed to have been given (i) one (1) business day after being sent by reputable overnight courier (such as Federal Express) or certified mail to the receiving party at its address stated on the applicable Order Form or at such other address as such receiving party may in the future designate to the other party in writing, or (ii) upon the first business day after delivery by electronically-confirmed email transmission to the email of the receiving Party if such email is a regular method of communication between the Parties. Invoices, however, shall be sent to Customer in accordance with BuildingLink’s standard procedures.
- Except as otherwise provided in the Agreement, no failure or delay of either party to exercise any right or remedy under the Agreement will operate as a waiver of such right or remedy. No single or partial exercise of any right or remedy will preclude any further or other exercise of the same or any other right or remedy, nor will any waiver of any right or remedy with respect to any circumstances be construed as a waiver of such right or remedy with respect to any other circumstances.
- If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify the Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Third Party Beneficiaries. The Agreement does not confer any rights or remedies upon any third party, except that (i) BuildingLink, will be an express beneficiary of any Order Form to which any of its Affiliates is a Party, with full power to enforce such Affiliate’s rights thereunder, and (ii) BuildingLink Affiliates, will be express beneficiaries of any Order Form to which any of its BuildingLink is a Party, with full power to enforce BuildingLink’s rights thereunder. Nothing in the Agreement will create or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the Parties.
- Governing Law; Dispute Resolution.
- The Agreement is governed by, and will be construed and enforced in accordance with, the laws of the State of New York, excluding its principles of conflicts of law. The Parties agree that any and all disputes, claims, or controversies arising out of or relating to this Agreement, the transactions and relationships contemplated by this Agreement, and/or the negotiation, validity or performance of this Agreement shall be resolved solely and exclusively by binding arbitration to be conducted before JAMS (“JAMS”) or its successor. The arbitration shall be held in New York, New York before a single arbitrator and shall be conducted in accordance with the JAMS Streamlined Arbitration Rules and Procedures then in effect except to the extent specifically modified herein. Notwithstanding anything to the contrary herein, the Parties agree that the arbitration proceedings may occur pursuant to virtual sessions. The arbitrator shall determine the arbitrability of any disputes and the applicability of this Section 12(i) and shall be empowered to grant interim and injunctive relief.
- The Parties covenant and agree that the arbitration hearing shall commence within one hundred twenty (120) days of the date on which a written demand for arbitration is filed with JAMS by any Party hereto and shall proceed and be completed expeditiously thereafter. If the Parties do not agree on an arbitrator, the Parties will promptly employ the JAMS procedures for selecting an arbitrator on an expedited basis. The arbitrator shall have the power to order the production of relevant documents by each Party. No other discovery shall be permitted in the absence of extraordinary circumstances as determined by the arbitrator. The arbitrator’s decision and award shall be made and delivered within thirty (30) days of the closing of the arbitration hearing. The arbitrator’s decision shall set forth in writing a reasoned basis for any award of damages or finding of liability. It is the intent of the Parties that the arbitration proceeds in a manner that is efficient, expeditious and cost-effective.
- The Parties covenant and agree that they will participate in the arbitration in good faith and that they will share equally its costs, except as otherwise provided herein or as ordered by the arbitrator. The arbitrator shall award the prevailing Party its reasonable costs and expenses of the arbitration, including attorneys’ fees. The Parties agree that the Federal Arbitration Act (“FAA”) will apply to the arbitration, and that the provisions of this Section shall be enforceable under the FAA. Each of the Parties hereto irrevocably and unconditionally consents to the exclusive jurisdiction of JAMS to resolve all disputes, claims or controversies arising out of or relating to this Agreement, the transactions and relationships contemplated by this Agreement, and/or the negotiation, validity or performance of this Agreement, and further consents to the exclusive jurisdiction of any state or federal court located in New York City for the purpose of enforcing the arbitration provisions of this Agreement and/or enforcing or seeking to confirm, vacate or modify any arbitrator’s award; provided, however, that to the extent necessary to avoid irreparable harm, any Party may seek temporary or preliminary injunctive relief or prejudgment attachment of assets in any court of competent jurisdiction.
- Equitable Relief. Each Party agrees that a breach by the other Party of its obligations under the Agreement may result in irreparable harm to the other Party for which monetary damages would be an inadequate remedy. Consequently, in the event of a breach, or threatened breach, of any such obligations, the non-breaching Party shall be entitled, without the requirement of posting a bond or other security, to seek equitable relief (including injunctive relief and specific performance) in addition to any and all other rights and remedies that may be available to it in respect of such breach.
- Heading, section, paragraph, and subparagraph references contained herein are for reference purposes only and in no way define, limit, or construe the scope or extent of any paragraph or section.
- Neither Party may assign the Agreement or any portion thereof, or its rights or obligations thereunder, without the prior written consent of the other Party, provided, however, BuildingLink may without consent of the Customer, consent, assign or otherwise transfer (by operation of law, change of control, or otherwise) this Agreement and its rights and obligations hereunder at any time (a) to a purchaser of or successor to all, or substantially all, of its business, securities, or assets, whether by sale, assignment, merger, stock sale, or otherwise, (b) as security for any obligations arising out of any debt financing arrangements entered into by BuildingLink and/or its affiliates, or (c) to any of its affiliates. Further, Customer may, with ten (10) days’ written notice to BuildingLink, assign this agreement to any person or entity which acquires the Property from Customer by purchase or foreclosure, or otherwise assumes Customer’s managerial or financial responsibility for the Property. Notwithstanding the foregoing, Customer shall remain responsible for all obligations under the Agreement unless or until Customer delivers a written agreement of the assignee, in form reasonably satisfactory to BuildingLink, pursuant to which the assignee agrees to assume all of Customer’s rights and obligations under the Agreement.
- The provisions contained in the Agreement that by their sense and context are intended to survive the expiration or termination of the Agreement will survive such cancellation and termination.
- Attorney’s Fees. Notwithstanding the provisions of Section 4(g) which shall govern with respect to costs of collection, in the event that any party institutes any legal suit, action, or proceeding, including arbitration, against the other party to enforce the covenants contained in this Agreement (or obtain any other remedy in respect of any breach of this Agreement), the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs. Further, if BuildingLink is required to comply with a subpoena of the records of Customer, Customer will reimburse BuildingLink for the reasonable cost of complying with the same, including reasonable attorneys’ fees.
- To the extent this Agreement or any portion thereof requires a signature, this Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of the Agreement or any portion thereof delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means the power, directly or indirectly, to direct the management and policies of the subject entity, whether through the ownership of voting securities, by contract, or otherwise.
“Property” means the multi-family, single family, or other real property-based community, housing, apartments, cooperatives, or condominiums for which Customer purchases BuildingLink Services to assist with the maintenance, operation, use, and management of such properties.
“BuildingLink Services” means the following as described in the Product Specific Terms and as set forth in an applicable Order Form: BuildingLink Platform Services, BuildingBoard Services, KeyLink Services, Customized Branded Services, any mobile applications related to any of the foregoing, and all materials, websites, software, hardware, user interfaces, templates, products, applications, tools, services, and features related to any of the foregoing.
“Customer” means in the case of an individual agreeing to these Terms on his or her own behalf, such individual, or in the case of an individual agreeing to these Terms on behalf of a company or other legal entity, the company or other legal entity for which such individual is agreeing to this Agreement. If any Permitted Users are associated with an Affiliate of Customer, the term “Customer” shall include the applicable Customer Affiliate and the provisions of the Agreement shall also apply to Customer’s Affiliate.
“Direct Costs” means shipping, postage or other costs incurred by BuildingLink in providing the BuildingLink Services. Direct Costs will always be disclosed to Customer on an applicable Order Form and all amounts associated with Direct Costs shall be charged to Customer in addition to any Fees.
“End User Agreement” means a click through agreement contained within certain BuildingLink Services that governs individual behavior of a Permitted User with respect to that BuildingLink Service. If an End User Agreement is contained within a BuildingLink Service, each applicable Permitted User must indicate its agreement to it to use and access that BuildingLink Service. If a Permitted User does not indicate its agreement to the applicable End User Agreement, the Permitted User’s use of and access to the BuildingLink Service shall automatically be deemed to indicate the agreement of that Permitted User to the End User Agreement.
“Order Form” means a written agreement between BuildingLink and Customer (or with an Affiliate of either Party, as applicable) specifying the BuildingLink Services purchased and referencing these Terms. If mutually agreed to in writing by the Parties, an Order Form may take the form of a statement of work, addendum, purchase order, a change request, or other similar written instrument.