BILT Definitive Terms & Conditions

PLATFORM SUBSCRIPTION AND SERVICES AGREEMENT

DEFINITIVE TERMS AND CONDITIONS

1. Representations and Warranties. Each of the following representations are provided as of the Effective Date.

a. BILT warrants and represents that: (i) it has the right to grant Client access to the Platform and the App to End Users; (ii) the Platform is free from any claims of infringement of patent, copyright, trade secret or other proprietary rights of third parties; (iii) BILT takes commercially reasonable efforts to ensure the Platform is free from Trojan horses, worms, viruses, malware or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system data or personal information; and (iv) that the Platform is protected by firewalls and/or other necessary security measures.

b. Client warrants and represents that: (i) it has the right to grant BILT a limited license to the Client Content.

2. Indemnification

a. BILT shall indemnify Client against claims brought against Client by any third party relating to: (i) breach of the foregoing representations and warranties; (ii) any breach or failure by BILT to perform or fulfill any of the covenants or agreements of BILT set forth in this Agreement; or (iii) BILT’s breach of any applicable Privacy Laws and Privacy Standards (both defined below). BILT will pay damages finally awarded against Client (or the amount of any settlement related thereto) with respect to such claims and all reasonable attorney’s fees in connection with such claims; provided, however, BILT shall have no obligation to indemnify and defend Client against claims related to Client’s negligence or intentional misconduct.

b. Client shall indemnify BILT against claims brought against BILT by any third party related to or arising from: (i) the inaccuracy, incompleteness or inadequacy of the Client Content; (ii) the infringement or misappropriation of third party intellectual property rights resulting from BILT’s use of the Client Content in accordance with the terms of this Agreement; (iii) Client’s failure to upload or update each product’s warnings and disclaimers on the Platform; (iv) any product liability claims related to Client’s products and the Client Content; (v) Client’s product warnings or disclaimers or Client’s failure to upload or update such product’s warnings and disclaimers on the Platform; and (vi) Client’s use of any End User data including any breach of applicable laws, including but not limited to the Privacy Laws and Privacy Standards. Client will pay any damages finally awarded against BILT (or the amount of any settlement related thereto) with respect to such claims and all reasonable attorney’s fees in connection with such claims; provided, however, Client shall have no obligation to indemnify and defend BILT against claims related to BILT’s negligence or intentional misconduct.
c. The indemnifying party shall have the ability to settle any such claims and to mitigate damages from any claim or potential claim, including by substituting an equivalent non-infringing alternative solution; provided, however, that the indemnifying party shall have no right to settle any claim other than for financial consideration without approval of the other party.

3. Privacy Laws

a. Client and BILT each agree that (i) at all times during the Term it will comply with (i) all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements currently in effect and as they become effective relating in any way to the privacy, confidentiality or security of Personal Information (collectively “Privacy Laws”), and (ii) all applicable industry standards concerning privacy, data protection, confidentiality or information security (collectively “Privacy Standards”); and (iii) for purposes of the EU Directives, Client is the “data processor” and BILT is the “data controller”. Notwithstanding the foregoing, BILT’s obligations under the Agreement are limited to only those Privacy Laws and Privacy Standards that apply to content and data that is not Prohibited Information (as defined in GDPR-Article 9) and that is permitted to be processed through the Platform.

b. Client and BILT acknowledge that Privacy Laws and Privacy Standards change frequently, and each party agrees to use commercially reasonable efforts to stay apprised of its applicable obligations with respect to Privacy Laws and Privacy Standards. In the event of any change of Laws applicable to the BILT Service in any jurisdiction that would in BILT’s reasonable determination cause the BILT Platform or Service or any element thereof to no longer comply with applicable Laws, BILT shall have the right to replace or modify the affected elements of the BILT Platform or Service, in whole or in part, so that it becomes legally compliant but provides substantially equivalent functionality. If such modification is not feasible on commercially reasonable terms, BILT may terminate provisions of the BILT Platform or Services. Client acknowledges that its rights described in the preceding sentence are its sole and exclusive rights in the event of such change of Laws.

c. At all times during the term of this Agreement, BILT shall maintain in force, at its sole cost and expense: (i) commercial general liability insurance with a minimum coverage of two million dollars ($2,000,000) per occurrence or event; and (ii) professional liability insurance policy with a minimum coverage of two million dollars ($2,000,000) per claim, and covering all of BILT’s activities and operations, employees, and BILT-appointed service providers acting under this Agreement.

4. Limitation on Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BILT MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING ANY GOODS, INCLUDING SOFTWARE, LICENSED OR SOLD OR SERVICE PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SOFTWARE IS PROVIDED “AS-IS”.

5. Limitation on Remedies. Except with regard to BILT’s indemnity obligations described herein, BILT shall not be liable to Client for any damages or indemnity exceeding the sum of all amounts actually paid by Client to BILT under this Agreement in the twelve (12) months prior to such claim. Neither party shall be liable for any lost profits or revenues, lost savings, lost data, or any other indirect, special, punitive, or consequential damages, regardless of the legal theory, and irrespective of whether the other party advises such party of the possibility of such damages. Furthermore, in no event shall either party be liable for any events if the other party does not bring a claim for such event within twenty-four (24) months from the claiming party’s awareness of such event.

6. Taxes. All taxes, of whatever nature, arising or resulting from this Agreement, except for taxes based on the net income of BILT, shall be borne by Client. Any applicable direct pay permits or valid tax-exempt certificates must be provided to BILT prior to the execution of this Agreement. If BILT is required to pay taxes (other than taxes based on BILT net income), Client shall reimburse BILT for such amounts.

7. Enforcement. If BILT is required to enforce the terms and conditions of this Agreement because of Client’s failure to comply or other breach, BILT shall be entitled to recover from Client the full amounts of all collection and enforcement costs incurred by BILT, including and without limitation, all reasonable attorneys’ fees and related expenses.

8. Term and Termination.

a. Term. The term of your Agreement shall be from the Effective Date until the End Date set forth in your Agreement.

b. Termination.
i. Client may terminate the Agreement for any reason by providing written notice. However, Client is obligated to pay, or will not be refunded, any License Fees for the remainder of the Term and for any Service Fees already earned. Service Fees are earned when worked and any partially completed BILT Instructions are charged at BILT’s then hourly rate. Approval of BILT Instruction files is not required.
ii. Notwithstanding the above, this Agreement may be terminated by either party at any time upon its discovery of a material breach by the other party of its obligations hereunder, including without limitation the timely payment of all Fees or invoices; provided, however, that the terminating party must first provide written notice to the other party of its material breach of this Agreement, and that such breach is not cured within thirty (30) days (10 days in the event of non-payment) after receiving such written notice; and further provided, that the aforementioned opportunity to cure need not be provided in the event of Client’s breach of the Confidential Information obligations set forth in the Agreement.

9. Independent Contractor Relationship. Nothing herein shall be construed to establish an employer-employee relationship between BILT and Client. BILT is an independent contractor, and neither party is the legal representative or agent of, or has the power to obligate (or has the right to direct or supervise the daily affairs of) the other or any other party for any purpose whatsoever. BILT and Client expressly acknowledge that the relationship intended by them is a non-exclusive business relationship based entirely on and as covered by the express provisions of this Agreement and that no partnership, joint venture, fiduciary or employment relationship is intended or created by reason of this Agreement.

OBLIGATIONS OF PARTIES
10. Client Support Obligations

a. Client shall provide a means for End Users accessing the App to contact Client with support requests or problems related to Client’s products, by means of a telephone hotline, active support email address or other functionality. Client shall then contact BILT to report any concerns experienced by End Users related to the App or BILT Instructions. In no event will BILT directly address any End User’s requests or problems relating to Client’s products.

b. Client is solely responsible for any and all integration of data with the Client’s system.

11. BILT Support Obligations

a. BILT provides support for all malfunctions related to the Platform. Such support will be provided relative to the severity of the related malfunction, in accordance with commercially reasonable response times. Client shall report any Platform issues through the BILT support portal or system.

b. Maintenance Windows. BILT will use the following maintenance windows for planned downtimes: Tuesday and Thursday from 1 a.m. to 4 a.m. Eastern U.S. Time or as otherwise notified to Client.

c. Exclusions. BILT shall have no obligation to support problems caused by Client’s negligence, abuse or misapplication, use of the Platform or Services other than as specified in BILT’s documentation or other current technical materials or other causes beyond the control of BILT. BILT shall have no liability for any changes in Client’s on-premise environment used to access the Platform or Service. Support Services do not cover training.

d. The Platform and Services provided are stand-alone and BILT has no obligation and is not responsible for any integration to Client’s IT system, nor any performance issues related to any such integration the Client undertakes.