BUILDIT™ SUBSCRIBER AGREEMENT (
IMPORTANT - PLEASE READ CAREFULLY: This SUBSCRIBER AGREEMENT (this
Agreement) is a legal
agreement between the person or legal entity agreeing to this Agreement (
and Command Alkon Incorporated (
Our), and governs Your use of Company's
BuildIt platform, including all software applications, data and databases, Content (defined below) and services
provided by or through such platform and all downloadable mobile and other software applications associated
therewith, and any successor platform(s) to the foregoing (collectively, the
accepting this Agreement, You agree to comply with and be subject to the terms and conditions of this
do not agree to be bound by this Agreement, You should immediately uninstall any downloaded software
applications and cease all use of the Platform.
The individual accepting this Agreement for Subscriber represents to Company that he or she is an authorized signatory of Subscriber with authority to bind Subscriber to this Agreement. If such person does not have this authority, do not sign up Subscriber to the Platform.
If You are an existing customer of Company and have executed a Master License and Services Agreement
MLSA) with Company, then this Agreement is subject to the MLSA in accordance with Section 20(b) of this
Any individual accessing and using the Platform, including on a personal computer, tablet or mobile device (a
Device), may only do so in her/his capacity as an employee or other representative of Subscriber that has
been authorized by Company to use the Platform on Subscriber's behalf (each an
Representative). Any Personal Information (defined below), including if applicable any geolocation
information, that is submitted or collected on such Device is deemed to be submitted by and on behalf of
Subscriber. If you as an individual do not agree to submit Personal Information in this manner, you should
stop accessing the Platform and uninstall any downloaded Applications (defined below).
The Platform; Grant of License.
Buildit allows participants in a construction material supply chain, including suppliers, purchasers and transportation providers, to communicate with each other, and share information regarding jobs and transactions. The Platform may be accessed through a designated internet website portal, on a mobile device, or through another authorized medium that may be specified by Company from time to time. This Agreement grants You a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to access the Platform through an authorized medium, and to use the Platform solely for Your internal business purposes, strictly in accordance with this Agreement.
Your eligibility to access and use the Platform is at all times subject to the acceptance by Company of Your application for account registration and Your continuing compliance with this Agreement. You represent, warrant, and covenant that: (i) You are a business entity duly formed and validly existing under the laws of its jurisdiction of formation; (ii) You have the power and capacity to enter into, and to perform Your obligations under, this Agreement; (iii) this Agreement has been duly authorized, executed, and delivered by You and constitutes a valid and binding obligation of You, enforceable in accordance with its terms; (iv) Your execution, delivery, and performance of this Agreement does not violate or result in any default under Your governing and constituent documents, bylaws, policies, or any other contract or agreement to which You are a party or by which Your assets may be bound, or any law, statute, rule, regulation, or order of any country or political subdivision, or any regulatory, self-regulatory, or membership organization that has jurisdiction over You, or of which You are a member; (v) You will use the Platform only for Your own business and not for the use or benefit of any third party; and (vi) You will designate Authorized Representatives (defined below) to access and use the Platform on Your behalf, each of whom is at least 18 years of age. We reserve the right to charge You a fee, subscription charge or other payment for access and use of the Platform, which fee will be specified in a written or electronic agreement between You and Company.
Content) thereon; (ii) remove or obscure any notice of proprietary rights from the Platform; (iii) reverse engineer, decompile, disassemble, modify, translate, adapt or attempt to derive the source code or underlying ideas or algorithms of the Platform, or any portion thereof (except to the limited extent applicable laws specifically prohibit such restriction), or attempt to recreate the Platform, or use the Platform for any competitive purpose; (iv) sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available the Platform, including any Content thereon, to or for the benefit of any third party; (v) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Platform. You agree that You will timely respond to Our reasonable inquiries regarding Your compliance with this Section 3(a).
Credentials). You shall maintain the confidentiality of the Credentials and not permit any third party to use Your Credentials to access or use the Platform. Without limiting the foregoing, You are responsible to Company for the use of the Platform by any person with whom You have shared Your Credentials or who gains access to the Platform as a result of Your failure to use reasonable security precautions, even if that use was not authorized by You.
Account Administrator), unless You designate another Authorized Representative to act as Account Administrator by notifying Company in writing. The Account Administrator may be given certain and special access rights with respect to Your account that are not given to other Authorized Representatives, including the ability to authorize and de-authorize other Authorized Representatives to access Your account, and to authorize the sharing of certain information as discussed in Section 9 below.
Ownership of Platform.
Transformed Data). Any Personal Information (defined below) or Subscriber Data from which the Transformed Data was derived will not be included in the Transformed Data, and/or will otherwise be de-identified so that it does not identify any individual or Subscriber if, and only if, such Transformed Data is to be shared with a third party. You hereby authorize Company to create such Transformed Data. You also acknowledge that when You or Your Authorized Representatives access or use the Platform, Company may use automatic means (including, for example, tools, scripts, software, cookies, web beacons and utilities) to collect information about You or Your Authorized Representatives' use of the Platform (the
Activity Data). For the avoidance of doubt, the Activity Data does not include any Personal Information or Subscriber Data that may be comprised in any Activity Data or from which any Activity Data may be derived. You hereby authorize Company to collect such Activity Data. You agree that any Activity and/or Transformed Data derived by Company in whole or part from the Platform shall be the exclusive property of Company and is deemed to be Company IP, and nothing herein shall limit Company's use or exploitation thereof for any purpose and without limitation, provided that any data elements therein derived from Subscriber Data or Subscriber Personal Data may not be disclosed to a third party unless they are aggregated and anonymized.
Operation of Platform
Application) that is appropriate for the applicable device. You must download an appropriate version of the Application for each of Your devices, and each such download is licensed for installation on a single device and may not be copied onto any other computer, device or other medium. You may not loan, rent, lease or otherwise transfer the Application to another user. You or Your Authorized Representative may be required to accept a mobile application user agreement in connection with the download and installation of the Application, pursuant to which the applicable end-user will be granted a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use the Application and the Platform solely for Your internal business purposes, strictly in accordance with this Agreement and any mobile end user agreement. Company (and/or its licensors and service providers) retains title and ownership of the Application and any copies thereof, regardless of the form or media in which or on which the original and other copies may exist. The Application is licensed as a single product, and its component parts may not be separated for use on more than one computer or device.
Subscriber Data). You agree that, as between You and the Company, You are and will be the sole and exclusive owner of all Subscriber Data. You represent that You have sufficient right under applicable law to transmit, store, copy, use and transfer into the Platform all Subscriber Data, sent to, from, or stored on the Platform using any Credentials, or otherwise provided by You to Us. You grant Us authorization to access, use, view, store, copy, create derivative works from and delete any Subscriber Data, as necessary to: (i) provide Services to you; (ii) operate, maintain, improve, transmit, and develop the Platform; (iii) develop products and services, including summaries, reports and analytics of Subscriber Data; (iv) make Your Shared Data and Trading Partner Networking Information (as defined below) available to other Participants (defined below) in accordance with the Sharing Principles determined in accordance with Section 9 below; (v) create Transformed Data pursuant to Section 5(b); and (vi) use Subscriber Data in other manners as You may authorize from time to time. You acknowledge that Our own operations and Our use of third parties to operate, maintain, improve, and develop the Platform may result in Subscriber Data being stored or processed on servers which may be located in various countries around the world. For the avoidance of doubt, Subscriber Data does not include any Activity Data. Following termination or expiration of this Agreement, Your Shared Data and Trading Partner Networking Information will no longer be available to other Participants, but we will have the right to continue to maintain Your Subscriber Data within our databases for use as described above, subject to the terms of this Agreement, including Section 8 (Collection of Personal Information).
Collection And Use Of Personal Information.
Personal Information). You represent that You have sufficient rights under applicable law (including without limitation U.S. privacy law and any E.U. privacy law, including the General Data Protection Regulation) to transmit, store, copy, use and transfer to Company all Subscriber Data, including any Personal Information, sent to, from, or stored on the Platform using Credentials assigned to You and Your Authorized Representatives, or otherwise provided by You to Company as part of Our administration of the Platform and related services. You hereby irrevocably consent and agree that the Subscriber Data submitted to the Platform, including any Personal Information, may be stored on servers not located within the United States or European Union, and accessed remotely by Company from anywhere in the world.
Participant), including third parties with which You do business, in accordance with the sharing principles of the system as described herein (the
Sharing Principles). You acknowledge and agree that Your Trading Partner Networking Information (defined below) will be visible to all Participants.
Trading Partner Networking Informationmeans Your name, the names and locations of any projects or jobs You have entered into the Platform, and a general description of Your area of business. If at any time You do not agree to the sharing of Your Trading Partner Networking Information with all Participants on the Platform, You should immediately uninstall any downloaded software applications and cease all use of the Platform. In addition, Your Account Administrator will have the ability to set certain parameters to enable additional categories of Your Subscriber Data to be shared with other Participants, and in certain cases limit such sharing to particular Participants (all such Subscriber Data that will be shared (other than Trading Partner Network Information), the
Shared Data). You will have the ability to make changes to Your sharing parameters from time to time.
Connectivity Between the Platform and Other Systems.
Third Party System). If You are a subscriber to both the Platform and such Third Party System, then You may be able to utilize such connectivity to exchange certain information between the Platform and the Third Party System. This connectivity is made available to You as a convenience only, and You acknowledge and agree that, notwithstanding this connectivity, Company is not responsible for any of the services or content provided by the Third Party System, or for any data held by or transferred to such Third Party System, and Your use of such Third Party System is subject to any agreement between You and the provider of such Third Party System.
API), a Software Development Kit (
SDK) and associated software, or other technical means or information. Such API, SDK, or other connectivity information and means typically will be made available pursuant to the terms of a separate license agreement, which will permit You to establish such connectivity solely pursuant to the terms of that agreement. You agree that you will use such connectivity only for Your own business, and only for the particular purpose expressly permitted in that connectivity agreement, which may include exchanging data with other platforms and third parties as necessary for Your own business purposes, but You will not otherwise use or exploit or make available such connectivity, or any data transferred using such connectivity, for any other purpose, including to develop or support a commercial product or service competitive with the Company's products or services. You are solely responsible for any such software or hardware You develop or use for such connectivity, and for any such software, system or platform used to connect to the Platform as permitted in the applicable connectivity agreement.
Suspension of Services.
We have the right to take appropriate action to address risks to the Platform, including any data or other content therein. Without limiting the foregoing, in the event of a severe or imminent threat to the Platform, We may immediately suspend Your right to access or use any portion or all of the Platform and related services if: (i) We reasonably believe that the Platform is being used in violation of the associated agreements or applicable law; (ii) in Our determination, Your use of the Platform interferes with the normal operations of the Platform or other Participants, or creates any threat to the security of the Platform or the content of any other subscriber; (iii) We become aware of what We, in our sole discretion, deem a credible claim that the Platform infringes upon the intellectual property rights of a third party; or (iv) We are required to do so by law. We will not be liable for any claims or damages of any kind arising out of a suspension under this Section. We may maintain a suspension for as long as reasonably necessary to address severe, imminent risks to the Platform or any subscriber content. Our right to suspend under this Section is in addition to Our right to terminate pursuant to Section 14 herein.
Company may from time to time in its sole discretion develop and provide Platform updates, which may include bug fixes, patches and other error corrections,
upgrades and/or new features (collectively, including related documentation,
Updates). Updates also may modify or delete in their entirety certain
features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features
or functionality. You further agree that all Updates will be deemed part of the Platform and be subject to all terms and conditions of this Agreement.
Third Party Materials.
The Platform may display, include or make available third party content (including data, information, software applications and other products, services
and/or materials) or provide links to third party websites or services, including through third party advertising (collectively,
Third Party Materials).
You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright
compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to You or any
other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to You and You access and
use them entirely at Your own risk and subject to such third parties' terms and conditions.
DISCLAIMERS OF WARRANTIES; LIMITATIONS OF LIABILITY.
AS ISAND COMPANY (ON BEHALF OF ITSELF AND ITS AFFILIATES, VENDORS, LICENSORS AND SERVICE PROVIDERS) HEREBY EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, EXPRESS OR IMPLIED, ON THE PLATFORM AND CONTENT FURNISHED IN CONNECTION THEREWITH, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, SUITABILITY, ACCURACY OF DATA OR SYSTEM INTEGRATION, INTEGRITY, UPTIME AND/OR AVAILABILITY, OR ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING, PERFORMANCE, USAGE OR TRADE PRACTICE. COMPANY (ON BEHALF OF ITSELF AND ITS AFFILIATES, VENDORS, LICENSORS AND SERVICE PROVIDERS) DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PLATFORM, CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR THAT THE OPERATION THEREOF WILL BE SECURE, UNINTERRUPTED, FREE FROM BUGS, VIRUSES OR ERRORS OR OTHER PROGRAM LIMITATIONS. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE AND ANY RELIANCE UPON THE PLATFORM, CONTENT AND SERVICES IS AT YOUR OWN RISK.
You agree to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to Your misuse of the Platform or Your breach of this Agreement. Furthermore, You agree that Company assumes no responsibility for the Content You submit or make available through the Platform.
Compliance With Law.
terrorist supportingcountry; and (ii) are not listed on any U.S. government list of prohibited or restricted parties.
DP Laws). Where in connection with the Platform, We process personal data (as defined in the DP Laws) supplied by You, we are doing so as a data processor on Your behalf. We shall: (i) only process such personal data in accordance with Your instructions which include use of such personal data as part of providing the Platform; and (ii) take appropriate technical and organization measures to prevent unauthorized or unlawful processing of such personal data and against accidental loss or destruction of, or damage to, such personal data. You acknowledge that We may transfer any such personal data outside of Your jurisdiction and, in any event, from jurisdiction to jurisdiction, but any such transfer shall not relieve Us from Our obligations under this clause, and You and We will enter into any required data processing agreements or separate data transfer agreements as required to effectuate such transfer per applicable data protection law. You hereby acknowledge and agree that We may appoint sub-contractors who may act as sub-processor(s) of the personal data, and that You shall have an opportunity to object to such sub-processor(s) if required by applicable data privacy law. We maintain an up-to-date list of such sub-processors on the Legal Section of Our website and we will provide a notification on the Platform in the event of a change to this list.
U.S. Government Rights.
The Platform and Content: (i) include commercial technical data and/or computer databases and/or commercial computer software and/or commercial computer software documentation, as applicable, which were developed exclusively at private expense by Command Alkon Incorporated, 1800 International Park Drive, Suite 400, Birmingham, Alabama 35243; (ii) are Company trade secrets for all purposes of the Freedom of Information Act; and (iii) are in all respects Company proprietary data and all rights are reserved under the copyright laws of the United States. The U.S. government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer databases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) and/or subject to the restrictions of DFARS 227.7202-1(a) and DFARS 227.7202-3(a) (June 2013), as applicable for U.S, Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (May 2014) and/or restricted rights provisions of FAR 52.227-14 (May 2014) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense federal procurements.
Governing Law And Venue.
The interpretation of this Agreement shall be governed by any applicable federal law, and the laws of New York, without giving effect to any choice or
conflict of law provision or rule (whether in New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.
To the extent that the United Nations Convention on Contracts for the International Sale of Goods (the
Convention) would be applicable to this Agreement
or any other dealings or transactions between the parties that are the subject matter of the foregoing, the parties hereby expressly
opt out of the Convention
and expressly state that the Convention is inapplicable to this Agreement and the transactions between the parties that are the subject matter of the foregoing.
Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the state and federal courts located in New York, New York for the purpose of any
suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby.
Cloud-Based) environment, including the risk of hacking or other unauthorized third party access to the Subscriber Data, and We are not responsible to You for any unauthorized access to Subscriber Data or the unauthorized use of the Platform. You acknowledge that, in order to provide the Platform, Company will use networking and communication infrastructure and services that are not under Company's control (collectively,
Infrastructure) and will, from time to time, use the services of third party providers and licensors (
Third Party Providers). Company's ability to provide the Platform will depend on the provision and availability of such Infrastructure and/or services and support by Third Party Providers, and We are not responsible to You under this Agreement or any supplements thereto for any failure by Us that is directly or indirectly caused by the unavailability or performance of such Infrastructure or Thirty Party Provider service or support. The services and licenses obtained by Us from any Third Party Provider, and Your use thereof, may be restricted by the terms of such licenses and applicable agreements. We are not responsible to You hereunder for any failure arising from any actions or inactions of a Third Party Provider.
includingshall be deemed to be followed by the phrase
Should You have any questions concerning this Agreement, or if You desire to contact Company for any reason, please contact Company at:
COMMAND ALKON INCORPORATED
Attn: Associate General Counsel
1800 International Park Drive, Suite 400
Birmingham, Alabama 35243
+1 (205) 879-3282
Last revised: March 26, 2020