COMMAND ALKON INCORPORATED
WEB APPLICATION END USER LICENSE AGREEMENT (“EULA”)

Last modified: February 20, 2019

IMPORTANT PLEASE - READ CAREFULLY: This EULA is a legal agreement between you (an individual, hereafter “User” or “You”) and Command Alkon Incorporated (“Company” or “We”), for this web application (collectively, the “Application”) and the associated online platform and services provided by Company (the “Platform”). By accessing or otherwise using the Application, and/or accessing and using the Platform, you agree to be bound by the terms of this EULA. If You do not agree to be bound by this EULA, You should immediately uninstall and cease all use of the Application.

License

This EULA grants you a limited, personal, non-transferable and non-exclusive license to: (i) access and use the Application for your personal, non-commercial use on any device which is owned or otherwise controlled by you (a “Device”), strictly in accordance with the documentation associated with the Application; (ii) access the Platform, and stream, and use the images, photographs, animations, video, audio, music, text, and associated printed materials or online or electronic documentation (collectively, the “ Content”) delivered through the Platform and the Application, strictly in accordance with this EULA.

Use Restrictions

You agree not to (directly or indirectly): (i) copy (except as expressly permitted under the license), modify, translate or otherwise create derivative works of any part of the Application or Platform, including any Content thereon; (ii) remove or obscure any notice of proprietary rights from the Application or Platform; (iii) reverse engineer, decompile, disassemble, modify, translate, adapt or attempt to derive the source code or underlying ideas or algorithms of the Application or Platform, or any portion thereof (except to the limited extent applicable laws specifically prohibit such restriction), or attempt to recreate the Application or Platform, or use the Application or Platform for any competitive purpose; (iv) sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available the Application, Platform, including any Content thereon, to or for the benefit of any third-party, including without limitation by making the Application available on a network where it is capable of being accessed by more than one device at any time; (v) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application.

Employer’s Agreement and Acceptable Use Policies

If You have been issued Credentials (defined below) the access to the Application as an Authorized User of Your employer (“Employer”), then Your use of the Application, Platform and Content also is governed by the terms of any Customer EULA between Company and Your Employer that relates to the use of the Application and/or Platform. You also are subject to any and all Acceptable Use Policies (“AUP”) related to and posted on the Platform, which is incorporated herein, and may be amended from time to time by Company.

Login Credentials

You have been assigned a login ID, passwords and other credentials issued to access the Application and/or Platform (“Credentials”). You shall maintain the confidentiality of the Credentials and not permit any third party to use your Credentials to access or use the Application or Platform. Without limiting the foregoing, You are responsible to Company for the use of the Application or Platform by any person with whom you have shared your Credentials or who gains access to the Application or Platform as a result of Your failure to use reasonable security precautions, even if that use was not authorized by You.

Ownership of Application, Platform and Content

The Application and Platform, including in each case all associated Content, are owned by Company and/or its licensors and service providers, and are protected by copyright and other intellectual property laws and international treaties. You acknowledge and agree that the Application, Platform and Content are provided under license, and not sold, to You. You do not acquire any ownership interest in the Application, Platform or Content, or any other rights thereto, including by implication or estoppel, other than the rights expressly granted, to use the Application subject to all terms, conditions and restrictions of this EULA. Company and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Application, Platform and Content including all copyrights, trademarks and other intellectual property rights therein or relating thereto.

Company regards software piracy as the crime it is, and we view offenders accordingly. We do not tolerate the piracy of any Company software, and we pursue (both civilly and criminally) those who do so using all legal means available, including public and private surveillance resources. As part of these efforts, Company reserves the right to embed a software security mechanism within the Application to monitor usage of the Application to verify your compliance with this license. Company utilizes data monitoring and scouring technologies to obtain and transmit data on users of illegal copies of our software or any system identified to have compromised security including but not limited to security emulators. This process does not collect any proprietary information. Company will not provide any of the information it gathers in connection with this process to any third party, except (i) as may be required by law or legal process or (ii) to enforce compliance with the key code requirement described above. If you are using an illegal copy of our software and do not consent to the collection and transmission of such data (including to the United States), cease using the illegal version and contact Company to obtain a legally licensed copy.

Collection And Use Of Your Information.

You acknowledge that when access or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Device and your use of the Application and Platform. You also may be required to provide certain information about yourself, including personally identifiable information (“Personal Information”) as a condition to accessing or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. Subject to Section 6.(b) below, all Personal Information We collect through or in connection with this Application is subject to our Privacy Policy: https://s3.us-east-2.amazonaws.com/cai-legal/GlobalPrivacyPolicy.htm

This Application allows You to communicate with certain third-party construction materials suppliers with which you do business (each a “Supplier”), and to access information relating to Your customer account with Your Suppliers, including regarding your jobs and other transactions with such Suppliers (collectively, “Job Information”). By accessing and using the Application, you authorize Company to enable: (i) You to view Your Job Information through the Application; (ii) You and Your Suppliers to communicate through the Application with respect to Job Information (including to transfer your Personal Information through the Application to the Supplier), and (iii) You to engage in transactions with Your Suppliers. Such communications and transactions are between You and Your Supplier(s), and the Application and the Platform are only providing a medium for such communications and transactions. Company has no responsibility for the content of such communications and transactions. Notwithstanding anything to the contrary herein, the use, storage and processing by the Suppliers of Your Job Information, including information You provide to the Suppliers through the Application and Platform, may be subject to Your Supplier’s customer agreement and privacy policy, and not Company’s EULA or Privacy Policy.

You represent that You have sufficient right under applicable law (including without limitation U.S. privacy law and any E.U. Privacy Directives) to transmit, store, copy, use and transfer to Company all data, including any Personal Information, sent to, from, or stored on the Application or Platform using Your Credentials, or otherwise provided by You to Company as part of Our administration of the Platform and related services. You also grant Company authorization to receive Your Job Information from Your Suppliers, including any Personal Information in Your Job Information. You also grant Company authorization to access, use, view, store, copy, and delete any such information provided by You or Your Suppliers as necessary to provide the services related to the Application and Platform. You hereby irrevocably consent and agree to the access and processing, including from geographic localities not within the United States or European Union, of any information sent to, from, or stored on the Application or Platform. You acknowledges that Company may use third parties to assist in the operation and maintenance of the Application and Platform, and/or to provide related services, and that this may result in such data being stored or processed on servers located in countries around the world.

Suspension of Services

We have the right to take appropriate action to address risks to the Application or Platform, including any data or other content therein. Without limiting the foregoing, in the event of a severe or imminent threat to the Application or Platform, We may immediately suspend Your right to access or use any portion or all of the Platform and related services if: (a) We reasonably believe that the Application or Platform are being used in violation of the associated agreements or AUP, or applicable law; (b) in Our determination, Your use of the Application or Platform interferes with the normal operations of the Platform or other customers, or creates any threat to the security of the Platform or the content of any other customer; (c) We become aware of what We, in our sole discretion, deem a credible claim that the Application or Platform infringes upon the intellectual property rights of a third-party or (d) 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 customer content. Our right to suspend under this Section is in addition to Our right to terminate pursuant to Section 10 herein.

Updates

Company may from time to time in its sole discretion develop and provide Application 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 Application and be subject to all terms and conditions of this EULA.

Third Party Materials

The Application and Platform may display, include or make available third-party content (including data, information, 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 at entirely at your own risk and subject to such third parties’ terms and conditions.

Termination

Without prejudice to any other rights or remedies at law or in equity, Company may terminate this EULA and Your right to access and use the Application and Platform, without notice, if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy and delete all copies of the Application and all of its component parts. Company may terminate this EULA, without prior notice, if it ceases to provide or operate the Application and/or Platform.

You may terminate this EULA by deleting the Application and all copies thereof from your Device.

Upon termination: (i) all rights granted to You under this EULA will also terminate; and (ii) You must cease all use of the Application and delete all copies of the Application from your Device and account.

DISCLAIMERS OF WARRANTIES; LIMITATIONS OF LIABILITY.

THE APPLICATION AND PLATFORM, AND THE CONTENT AND SERVICES PROVIDED THEREON, ARE PROVIDED “AS IS” AND 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 APPLICATION, PLATFORM AND CONTENT FURNISHED IN CONNECTION THREWITH, 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 APPLICATION, PLATFORM, CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS 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 APPLICATION, PLATFORM, CONTENT AND SERVICES IS AT YOUR OWN RISK.

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, YOU AGREE THAT COMPANY, ITS AFFILIATES, VENDORS, LICENSORS AND SERVICE PROVIDERS, SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LIABILITY FOR: (i) PERSONAL INJURY OR, PROPERTY DAMAGE, (ii) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOSS OR DESTRUCTION OF DATA, COMPUTER FAILURE OR MALFUNCTION, BUSINESS INTERRUPTION, COSTS OF COVER, LOSS OF USE, LOSS OF GOODWILL OR ANY OTHER LOSS, OR FOR EXEMPLARY DAMAGES, (iii) OR DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT, IF ANY, ACTUALLY PAID BY YOU FOR THE APPLICATION; IN EACH CASE WHETHER RESULTING FROM YOUR USE OR INABILITY TO USE THE APPLICATION, PLATFORM, CONTENT OR SERVICES, OR FOR DAMAGES RESULTING FROM OR RELATING TO CLAIMS BROUGHT AGAINST YOU BY THIRD PARTIES OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY (ON BEHALF OF ITSELF AND ITS AFFILIATES, VENDORS, LICENSORS AND SERVICE PROVIDERS) DISCLAIMS ANY LIABILITY FOR PRODUCT LIABILITY AS A CONSEQUENCE OF LOSS OR DAMAGE TO PROPERTY WHICH, IN VIEW OF ITS NATURE, IS NORMALLY INTENDED FOR COMMERCIAL USE. THESE LIMITATIONS OF COMPANY’S (AND ITS AFFILIATES’, VENDORS’, LICENSORS’ AND SERVICE PROVIDERS’) LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE. ANY ACTION AGAINST COMPANY MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

Indemnification

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 Application or Platform or your breach of this EULA. Furthermore, you agree that Company assumes no responsibility for the content you submit or make available through this Application or Platform.

Compliance With Law

You shall use the Application, Platform and Content in full compliance with all applicable laws and regulations, including all laws and regulations applying to privacy and personal information.

The Application may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the U.S.

You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.

U.S. Government Rights

The Content, Application, and Platform: (i) includes commercial technical data and/or computer data bases 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 data bases 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 EULA shall be governed by any applicable federal law, and the laws of Alabama, without giving effect to any choice or conflict of law provision or rule (whether in Alabama 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 EULA 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 the EULA 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 Alabama or the purpose of any suit, action, proceeding or judgment relating to or arising out of the EULA and the transactions contemplated hereby.

General Provisions

If any provision of this EULA shall be found to be illegal or unenforceable, then, notwithstanding such illegality or un-enforceability, the EULA shall remain in full force and effect and such provision shall be deemed to be deleted. Furthermore, if possible to ascertain the intent of the Parties, there shall be added a substitute provision as similar in substance as legally possible and the remainder of the EULA shall not be affected. This EULA and the policies referenced herein constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application. Any failure or delay by either Party in exercising any right or remedy will not constitute a waiver of such right or remedy. You may not assign or transfer the EULA, in whole or part, or any rights or obligations thereunder, without the prior written consent of Company. In the event of any attempted assignment or transfer in violation of this Section, such purported assignment or transfer shall be void and without force or effect. Company shall not be liable to You for any delay, failure or inability to perform its obligations under this EULA, or any losses arising in connection with the foregoing, due to any cause beyond its reasonable control, including, but not limited to, utility failures, equipment breakdowns, fires, storms, accidents, acts of God, acts of war, acts of terrorism, labor shortages, telecommunications or Internet failures, or any act or omission by You.

Should you have any questions concerning this EULA, or if you desire to contact Company for any reason, please contact Company at:

E-mail:
legal@commandalkon.com

Or write to:
Command Alkon Incorporated
Attn: General Counsel
1800 International Park Drive, Suite 400
Birmingham, Alabama 35243
+1 (205) 879-3282