BUILDING SYSTEMS DESIGN

TERMS AND CONDITIONS OF SALE

These Terms and Conditions of Sale are presented for user acceptance in a pop-up window on the Order Form page of the Building Systems Design, Inc. ("BSD") company website. Upon acceptance, they form a binding agreement (the "Agreement") between BSD and the individual or organization identified on the Order Form (the "User") for the purchase of an end user license for Software or a subscription for use of the Software in a software-as-a-service (SaaS) mode, as indicated on the Order Form.

By clicking on the "User Agrees" button at the bottom of the pop-up window, the individual doing so affirmatively acknowledges and agrees that he or she is the duly authorized representative of the User and is executing this Agreement on the User's behalf. The User acknowledges and agrees that said act constitutes the User's valid and binding electronic signature and that the User agrees to purchase an end user license for the Software or a subscription for the use of the Service(s) identified on the Order Form, subject to the following terms and conditions:

  1. Definitions.

    1. Authorized Individuals refers only to individuals (i) who are employed by User at the address indicated on the Order Form and who use the Software for the User's internal business purposes, or (ii) who are engaged as consultants by the User, but then only to the extent of their engagement by the User (and in no way for their own interest or the interest of a third party).

    2. BSD LinkMan-E or "LME" means the add-on to SLE that provides interoperability between SLE and other software applications using data and software copyrighted by BSD. BSD LinkMan-E is a trademark of Building Systems Design, Inc.

    3. BSD SpecLink-E or "SLE" means the specification production system that comprises a master specifications database of sections that are individually owned and copyrighted by BSD and other entities and software that is copyrighted and owned by BSD, all of which is offered via a conventional end user license or as a service from BSD's cloud based platform. SLE also includes documentation and periodic newsletters copyrighted by BSD. BSD SpecLink and design is a registered trademark of Building Systems Design, Inc.

    4. BSD CostLink/AE (or "CL/AE") means the cost estimating system that comprises software that is copyrighted and owned by BSD and a cost estimating database that is copyrighted and owned by others, all of which is offered via a conventional end user license or as a service from BSD's cloud based platform. SLE also includes documentation and periodic newsletters copyrighted by BSD. BSD CostLink and design is a registered trademark of Building Systems Design, Inc.

    5. Order Form means the on-line order form that is completed by the User and submitted electronically to BSD for the purchase of a Software license or Services. The Order Form shall contain only responsive information regarding the User and the Software or Services requested. No additional information contained in the Order Form shall be deemed to vary, modify or supplement the terms and conditions of this Agreement. Any changes or additional terms and conditions (if any) to this Agreement must be in a hardcopy written addendum signed by the authorized representatives of BSD and the User.

    6. Service means collectively the Software when offered in a software-as-a-service mode via BSD's cloud based platform, including the portal and any Third Party Software installed on the platform to permit the User to access the Software online.

    7. Software collectively means BSD LinkMan-E, BSD SpecLink-E, and BSD CostLink/AE.

    8. Third Party Software means any access methods, user validation software and other software that is licensed by any third party to BSD for use as part of BSD's cloud based platform for the Service.

  2. User's Rights. Conditioned on the User's compliance with each and every term and condition of this Agreement, BSD grants the User the following rights during the term of this Agreement:

    1. If the User has purchased an end user license, the User is hereby granted a limited, non-transferable right and license to (i) download the Software indicated on the Order Form, (ii) install one instance of said Software on the User's server, and (iii) allow up to the maximum number of concurrent Authorized Individuals set forth on the Order Form to access and use said instance of the Software.

    2. If the User has purchased a subscription for Services, the User is hereby granted a limited, non-transferable right to allow up to the maximum number of concurrent Authorized Individuals set forth on the Order Form to access and use the Service, consisting of one instance of the Software installed on BSD's cloud based platform.

      The User may use the Software or Service, as applicable, for the User's own internal business purposes to produce specifications for specific projects or to create office master specifications. The User may not use the Software or Service for other purposes. Specifications and reports produced through the use of the Software or Service may be reproduced and distributed for use in connection with the particular project for which they were originally created. BSD and other owners of copyrights in the Software and related software programs and databases reserve all rights not specifically granted in this Agreement.

  3. User IDs and Passwords. User represents that the number of concurrent Authorized Individuals using the Software or Service shall not exceed the number set forth on the Order Form. For the Service, BSD shall assign e user names and passwords for use by Authorized Individuals, and the User shall not permit Authorized Individuals to share their user names and passwords with others. The User shall be fully responsible for all acts and omissions of Authorized Individuals and for all acts and omissions associated with user names and passwords assigned to User's Authorized Individuals. User shall protect the secrecy of the user names and passwords and shall use reasonable efforts to prevent unauthorized access to the Software or Service. User shall notify BSD immediately upon realizing that it has lost any of the user names or passwords assigned to its Authorized Individuals or that a third party has misappropriated one or more user names or passwords or has obtained unauthorized access to the Service.

  4. Prohibitions. The User MAY NOT reproduce the Software or Service for the use of others or allow anyone who is not an Authorized Individual to access or otherwise make use of the Software or Service. The User MAY NOT decompile, reverse engineer, translate, decrypt, or disassemble the Software or any Third Party Software, or otherwise gain access to the underlying source code of the Software, the Third Party Software or the master databases for any purpose and may not assist others in doing so. The User MAY NOT reproduce, resell, publish, distribute, or otherwise make use of specifications or reports produced through the Software or Service, except as permitted under "User's Rights" above. The User MAY NOT continue to use the Software or Service beyond the expiration, cancellation, or termination of the term of this Agreement, except by resubmitting an Order Form for a new license or subscription, or by advance payment of renewal fees as provided in Section 8 below. User MAY NOT upload or transmit through the Service any worms, trapdoors, Trojan horses, or other malicious or harmful code. User MAY NOT remove, modify, or obscure any copyright, trademark, or other proprietary rights notices contained in or on the Service, the Software or any Third Party Software. User shall not export or re-export or otherwise distribute the Service, the Software or any Third Party Software to any prohibited destination country under the EAR, U.S., and/or Israeli sanctions regulations or in contravention of any applicable export controls. User shall not duplicate or create any substantially similar or competitive variations of the Software or the Service. User access to the Service is restricted to Software functionality. Access to the Service for any other purpose is strictly prohibited and is a violation of this Agreement.

  5. Confidentiality. The User acknowledges that the Software contains confidential information proprietary to BSD and its vendors ("Confidential Information"), and User shall protect the secrecy of such Confidential Information using at least the same measures and care that it uses for its own similar information, but in no event using less than reasonable standard of care. User shall not use the Confidential Information to compete with BSD or in any way detrimental to BSD. User shall not disclose the Confidential Information to third parties, and shall prevent unauthorized access to the Confidential Information by third parties. Immediately upon termination, expiration, or cancellation of this Agreement for any reason, User shall return or, at BSD's option, destroy, any Confidential Information in User's possession or control.

  6. BSD's General Rights and Obligations.

    1. Improvements. BSD may from time to time release updates and upgrades to the Software. As part of ongoing maintenance and support during the term of this Agreement, BSD shall make such updates and upgrades available for download by the User or shall install the updates and upgrades on BSD's cloud based platform (as applicable).

    2. Support. BSD will provide toll-free telephone support to the User during normal office hours, which are 8:30 a.m. to 5:30 p.m., Eastern Time, on normal business days (excluding weekends and holidays).

    3. Software Support Service Levels. More detailed information regarding BSD's maintenance and support obligations regarding the Software may be set forth in a service level agreement, as published from time to time on BSD's company website.

    4. Intellectual Property. User acknowledges that BSD owns all right, title, and interest in and to the Software, including without limitation the copyrights, patents, trade secrets, and other intellectual property rights embodied therein.

    5. Usage Information. BSD will have the right to gather information about the User's use of the Software or Service from User or from observation of User's use of the Software or Service. BSD will have the right to make commercial use of collected statistical data without identification of specific data sources and will have the right to make use of certain specific project data with permission of the User. BSD may designate an individual or firm to inspect and make copies of the User's records during the term of this Agreement and for a period of two (2) years thereafter to audit User's compliance with this Agreement. BSD shall bear the expense of such audit unless the audit reveals that User failed to comply with any term or condition of this Agreement, in which case the User shall bear the expense of the audit.

  7. BSD's Rights and Obligations regarding the Service.

    If the User has purchased a subscription for the Service, the following provisions shall apply:

    1. Platform Availability. BSD shall: (i) provide basic support for the Service to the User at no additional charge, (ii) contract with a qualified platform service provider to make the Service and the User data available 24 hours a day, 7 days a week, except for: (a) scheduled downtime of its platform service provider, or (b) any unavailability/data loss caused by circumstances beyond BSD's or the platform service provider's reasonable control, including without limitation, Force Majeure Events, Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Service only in accordance with applicable laws and government regulations.

    2. Security. BSD shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the User's data in its possession, in conformity with reasonable commercial standards, and shall use commercially reasonable efforts to obtain similar assurances from its vendors. BSD shall not (i) modify the User's data, (ii) disclose the User's data except as compelled by law or as expressly permitted by the User, or (iii) access the User's data except to provide the Service and prevent or address service or technical problems, or at the User's request in connection with customer support matters.

    3. Archiving. Upon the User's request or upon cancellation or termination of the Agreement, BSD will remove all data associated with the User's project(s) from the BSD platform, including without limitation all project logs and related files (collectively, the "Project Data"), and enable the User to download the same in a compressed file (the "Archive Package") from the BSD platform, provided all amounts due under this Agreement have been paid in full. Project logs will be recorded in HTML format in the Archive Package, with direct links to the file for each document recorded in the project log. The ability to download the Archive Package shall be available for a period of thirty (30) days after the User's request or cancellation or termination of this Agreement, as applicable.

    4. Data Removal. BSD reserves the right to proceed with archiving and removal of Project Data from the BSD platform if a project has no new activity for a period of sixty (60) consecutive days and if the User has not responded to BSD's request to archive. Notwithstanding anything to the contrary contained herein, BSD reserves the right to withhold, remove and/or discard Project Data, without notice, for any breach of this Agreement, including without limitation, the User's non-payment of the fees due hereunder. Further, upon termination for cause or after the expiration of the thirty (30) day window following cancellation or termination, the User's rights to access or use Project Data through the BSD platform shall immediately cease, and BSD shall have no obligation to maintain or forward any Project Data to the User.

    5. Data Retention. BSD has the right, but not the obligation, to retain copies of any Project Data following cancellation or termination of the Agreement or completion of the archive process as described in this Section 7. BSD is not required to retain the Project Data and may, at its option, delete the Project Data at any time following termination or cancellation of this Agreement without notice to the User.

    6. Hosting Service Levels. More detailed information regarding BSD's hosting obligations regarding the Services may be set forth in a service level agreement, as published from time to time on BSD's company website.

  8. Payment.

    1. Fees and Invoicing. In exchange for the grant of license to the Software or access to the Service, as applicable, the User agrees to pay BSD the license fees, subscription fees, and/or other fees identified in the Order Form. All initial license, subscription and other fees shall be due and payable in advance. Thereafter, BSD shall issue invoices to User for any ongoing or periodic fees or relating to additional services or any renewal term. All fees (other than the initial fees) are due upon receipt of the applicable invoice. If any fees are not paid by the User within thirty (30) days of the due date, interest on the outstanding balance shall accrue at the rate of 1.5% per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. All license, subscription and other fees are subject to change prior to each renewal term.

    2. Adjustments. User acknowledges that the subscription fee is based in part on the anticipation that User's use of the Service will require no more than the standard storage space and bandwidth allotments per published usage category. A table of those usage categories is posted on BSD's company website, which may be revised from time to time. If at any time during the term of this Agreement User's use of the Service exceeds these allotments, BSD may charge User additional amounts as described in the published table.

    3. Refunds. The User acknowledges that the license or subscription fee is nonrefundable except as set forth in this Section 8(c). If the User is not satisfied with the Software or the Service for any reason, BSD will refund the full license or subscription fee, less a fifteen percent (15%) service charge, upon written notice from the User, provided that the User complies with all of the following within thirty (30) days of accepting the terms and conditions of this Agreement: (i) the User has discontinued of use of the Software or Service; (ii) the User must call BSD's technical support and receive an unsubscribe code; (iii) the User must also send a letter on User's letterhead, explaining the reason for the dissatisfaction and certifying that no copies of the Software or any reports or output from it have been retained and enclosing any and all materials related to the Software or the Service that User has received from BSD.

  9. Term and Termination.

    1. Term; Renewals. The term of this Agreement shall begin once the User clicks on the "User Agrees" button and shall remain in effect for one (1) year, unless otherwise provided in the Order Form. Thereafter, this Agreement shall automatically renew for successive one (1) year renewal terms, unless either party provides written notice of its intention not to renew at least ten (10) days prior to the renewal term. BSD reserves the right to make changes in the terms and conditions of this Agreement with respect to any renewal term. Any such changes to the terms and conditions must be posted on BSD's company website not less than thirty (30) days prior to the renewal date and will become effective upon renewal of the Agreement, unless User elects not to renew this Agreement in a timely manner.

    2. Suspension. In addition to its other rights and remedies, BSD may suspend all services (including the Service) immediately upon written or electronic notice to User for failure to pay the any fees when due, or for any act or omission that breaches the restrictions on User's access and use of the Software or Service, or infringes BSD's intellectual property rights or misappropriates BSD's confidentiality rights.

    3. Termination for Breach. Either party may terminate this Agreement if the other party fails to cure a breach of this Agreement within thirty (30) days following written notice of the breach.

    4. Immediate Termination. BSD may terminate this Agreement immediately if BSD's suppliers discontinue service to BSD.

    5. Effect of Termination. The termination, expiration, or cancellation of this Agreement shall not affect the respective rights and obligations of the parties arising under it before the effective date of termination, and shall not limit the parties' rights and remedies under applicable law or in equity. Termination in accordance with the provisions of this Section 9 shall not constitute breach of this Agreement.

    6. Post-Termination. Immediately upon termination, expiration, or cancellation of this Agreement for any reason, the rights granted User shall terminate and be of no further force or effect and User shall immediately discontinue all access to and use of the Software or Service. User acknowledges that BSD may cut off User's access to the Software or Service to give effect to the termination provisions in this Agreement.

  10. Representations. User represents and warrants that: (i) neither entry into nor performance of its obligations under this Agreement shall breach any of its obligations to any third parties; (ii) it is not a competitor of BSD; and (iii) it will use the Software and the Service only in compliance with international, federal, state, and local laws, statutes, regulations, and ordinances. Any User that is a corporation, partnership, limited liability company or other entity further represents and warrants that it is duly organized and in good standing under the laws of its state of formation, and that it has the necessary corporate and/or other power and authority to enter into and perform its obligations under this Agreement.

  11. Disclaimer : THE USER HEREBY ACKNOWLEDGES THAT THE SOFTWARE AND THE SERVICE, INCLUDING THE UNDERLYING DATABASES AND DATA, ARE INHERENTLY SUBJECT TO ERROR. USER MUST USE THE SOFTWARE OR SERVICE IN A RESPONSIBLE MANNER AND MAKE REASONABLE DETERMINATIONS AS TO ITS SUITABILITY FOR A PARTICULAR PURPOSE PRIOR TO ITS USE. NOTHING CONTAINED IN THIS AGREEMENT SHOULD BE CONSTRUED AS A RECOMMENDATION TO USE ANY MATERIAL, PRODUCT, INVENTION, SYSTEM, PROCESS, APPLICATION, OR METHOD OF INSTALLATION. BSD AND ITS SUPPLIERS, AND ANYONE ELSE INVOLVED IN THE PREPARATION, REPRODUCTION, PROMOTION, OR DISTRIBUTION OF THE SOFTWARE OR SERVICE EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, DATA COMPLETENESS, NON-INFRINGEMENT, AND THAT USE OF THE SOFTWARE OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.

  12. Limited Remedy . Except as may be expressly provided in BSD's service level agreements (if any), USER'S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECT IN THE SOFTWARE OR SERVICE OR ANY BREACH BY BSD OF THIS AGREEMENT SHALL BE, AT BSD'S SOLE DISCRETION, THAT BSD SHALL USE COMMERCIALLY REASONABLE EFFORTS TO REPAIR OR CORRECT THE DEFECT IN THE SOFTWARE OR SERVICE OR REMEDY THE BREACH, OR, IF BSD DETERMINES THAT SUCH REMEDY IS NOT ECONOMICALLY FEASIBLE, BSD MAY TERMINATE THIS AGREEMENT AND REFUND A PRO-RATED AMOUNT OF THE LICENSE OR SUBSCRIPTION FEE FOR THE REMAINDER OF THE TERM.

  13. Limitation of Liability . Except for claims relating to fraud, willful misconduct and/or breach of confidentiality IN NO EVENT WILL BSD OR ITS SUPPLIERS HAVE ANY LIABILITY TO USER HEREUNDER FOR ANY DIRECT, SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGES FOR LOST PROFITS OR ANTICIPATED SALES, EVEN IF BSD HAS BEEN NOTIFIED OF THE LIKELIHOOD OR POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL BSD HAVE ANY LIABILITY TO USER FOR ANY AMOUNT GREATER THAN THE TOTAL AMOUNT OF THE LICENSE OR SUBSCRIPTION FEE PAID TO BSD BY USER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH USER'S CLAIM AROSE.

  14. Indemnification . The User shall be responsible and liable for all of the User's and the Authorized Individuals' acts and omissions and any breach of this Agreement caused by the User or the Authorized Individuals. The User shall, at the User's expense, defend, indemnify and hold BSD, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, members, employees, advisors, and agents harmless from and against any and all costs, damages, losses, liabilities and expenses (including court costs and attorneys' fees) arising out of or in connection with: (i) any claim alleging that use of Project Data infringes the rights of, or has caused harm to, a third party; (ii) any claim, which if true, would constitute a violation of any of the User's representations and warranties; (iii) any claim arising from the breach by the User of this Agreement; (iv) any claim arising out of the User's negligence or willful misconduct; (v) any claim arising out of or related to the User's use of the Software and/or the Service or the related electronic media or components; and (vi) any claim, demand or subpoena for records or testimony arising out of any dispute related to or arising out of a User project.

  15. General.

    1. Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, facsimile or email transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. All notices to User shall be addressed to the address set forth on the Order Form, and all notices to BSD shall be addressed to 3565 Piedmont Road NE, Two Piedmont Center, Suite 300, Atlanta, GA 30305 until either party gives notice of a change in address pursuant to this Section 15(a).

    2. Assignment. This Agreement and all rights and duties granted or imposed in it are personal to User. This Agreement is binding on and benefits the parties and their respective successors and permitted assigns. User shall not assign, delegate, sublease, sublicense, or subcontract any or all of its respective rights, liabilities, duties, or obligations under this Agreement without the specific written consent of BSD. The User may transfer its license to the Software or subscription for the Service with BSD's approval after submitting a request on User's letterhead, subsequently completing a Transfer of License or Subscription form from BSD, paying a transfer fee of $250, and receiving an Unpermit code from BSD. BSD may, without prior written consent of User, assign any or all rights and/or obligations under the Agreement.

    3. Force Majeure. No failure or omission of either party in the performance of any obligation under this Agreement (except the obligation to pay) shall be deemed a breach if it arises because of a cause beyond the reasonable control of such party, including but not limited to acts of God, floods, fires, explosions, storms, tornados, earthquakes, acts of public enemy, terrorist acts, riots, epidemics, quarantines, loss of power, labor strikes, failure of suppliers or other third party vendors, or causes of similar nature (each, a "Force Majeure Event"). Any delay due to a Force Majeure Event shall continue only for so long as the Force Majeure Event continues, and only to the extent that the party is so prevented or delayed.

    4. Amendments and Waivers. Except as otherwise provided in this Agreement, this Agreement may not be modified or amended except in writing signed by the parties, and none of its provisions may be waived except in writing signed by the party to be charged. No waivers shall be implied, whether from any custom or course of dealing or any delay or failure in a party's exercise of its rights and remedies hereunder or otherwise. Any waiver granted by a party shall not obligate such party to grant any further, similar, or other waivers.

    5. Remedies. Except as otherwise provided in this Agreement, all remedies provided in this Agreement are cumulative, in addition to all other remedies available to a party at law or in equity or otherwise, and the exercise or partial exercise of any such right or remedy shall not preclude the exercise of any other right or remedy. User acknowledges and agrees that BSD's remedy at law for any actual or threatened breach of its intellectual property rights, including without limitation a breach of the obligation to maintain the confidentiality of the Confidential Information, would be inadequate and that BSD shall be entitled to specific performance or injunctive relief, or both, without obligation to pay a bond, in addition to any damages that BSD may be legally entitled to recover, together with reasonable expenses of litigation. This provision will survive cancellation, expiration, or termination of this Agreement.

    6. Relationship. The parties acknowledge that each is acting independently and they do not intend by this Agreement to create any employment relationship, and nothing in this Agreement shall be construed so as to create a partnership, joint venture, franchise or other similar arrangement between the parties. This Agreement provides neither party the authority to enter into any agreement, make any warranty or representation on behalf of the other party.

    7. Interpretation. The parties agree that the rule of construction to the effect of any ambiguities are resolved against the drafting party shall not be used in the interpretation of this Agreement, and no deletions from prior drafts of this Agreement shall be construed to create the opposite intent of the deleted provision. Each party to this Agreement has had the opportunity to consult the legal counsel of its choice. Unless otherwise required by the context in which the term appears, (i) a reference to article, section, and paragraph will be a reference to an article, section or paragraph of this Agreement and references to a section shall include its subsections; (ii) the words include, includes and including will be deemed to be followed by the phrase "without limitation" and will not be construed to mean that the examples given are an exclusive list of the topics covered; (iii) references to this Agreement will include a reference to all exhibits and schedules hereto; (iv) reference to any law, regulation, agreement, document or instrument will mean such law, regulation, agreement, document or instrument as it may from time to time be amended, restated, modified, supplemented or replaced.

    8. Captions, Exhibits, Severability. The captions in this Agreement are for convenience only, and in no way limit or amplify the provisions of this Agreement. The unenforceability or invalidity of any provision in this Agreement shall not affect the enforceability or validity of any other provision, all of which shall be construed and applied in the manner most likely to implement the parties' intentions.

    9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia (without regard to its rules on conflicts of laws) and the United States of America. Any dispute between the parties arising out of or relating to this Agreement or the breach of this Agreement shall be resolved by the state or federal courts sitting in Georgia.

    10. Survival. Section 9 (Term and Termination), Section 11 (Disclaimer), Section 12 (Limited Remedy), Section 13 (Limitation of Liability), Section 14 (Indemnification) and Section 15 (General) shall survive termination of this Agreement in addition to provisions that, expressly or by their nature, survive termination of this Agreement.

    11. Third Parties. This Agreement is entered into by and between, and may be enforced only by the parties. This Agreement shall not be deemed to create any rights in third parties other than the parties' permitted successors.

    12. No Inducement. Neither party has relied on or been induced to enter into this Agreement by representations other than those expressly set out in this Agreement.

    13. Entire Agreement. This Agreement and any applicable service level agreements collectively represent the entire agreement between the parties, superseding any and all other prior or contemporaneous agreements, promises or representations between them regarding the subject matter of this Agreement. No modification shall be made to this Agreement unless expressed in writing signed by authorized representatives of both parties except as otherwise provided in this Agreement.

The posting date of these Terms and Conditions of Sale is August 4, 2015.