THIS CONTRIBUTOR AGREEMENT (“AGREEMENT“) GOVERNS YOUR USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY USING THE SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU,” “YOUR” AND “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
“BOMA” means Building Owners and Managers Association International.
“Customer Data” means all electronic data or information submitted by or on behalf Customer or Customer’s Users to the Service.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Service” means Waypoint’s automated EER submission platform and process known as “Waypoint Contributor, “including all content made available by Waypoint on the Service.
“Users” means individuals who are authorized by Customer to use the Service. Authorized Users are limited to employees, consultants, contractors and agents of Customer.
“We,” “Us,” “Our” and “Waypoint” each means Waypoint Building Group Inc.
“You” “Your” and “Customer” each mean the company or other legal entity for which you are accepting this Agreement.
2.1 Provision of Service. Subject to Customer’s compliance with the requirements of this Agreement, including the timely submission of data as specified in Section 2.2, during the term of this Agreement Waypoint shall make the Service available to Customer. Subject to Customer’s compliance with the requirements of this Agreement, during the term of this Agreement, Waypoint grants to Customer a non-transferable, non-exclusive, limited license to use the Service solely for Customer’s own internal business purposes and not for external purposes or any sale, resale, distribution, or any other commercial use.
2.2 Customer Obligations. Customer shall submit reports to the Service, in the format and including the content mutually agreed by the parties. Customer shall use its best efforts to ensure that the data submitted or provided is correct and complete. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Customer Data and of the means by which it acquired Customer Data, and (iii) use the Service only in accordance with this Agreement and all federal, state and local laws, ordinances, orders, and regulations of the federal, state, county, or city governments applicable to Customer Data or the Service.
2.3 Integration with Third Party Applications. The Services may contain features designed to interoperate with applications and services provided by third parties (“Third Party Applications”), including, without limitation, vendors of accounting and billing systems. If Customer elects to use such Services features, Customer may be required to obtain access to such Third Party Applications from their providers. If the provider of any such Third Party Applications ceases to make the Third Party Application available for interoperation with the Services on reasonable terms, Waypoint may cease providing such Services features without liability.
3.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Waypoint reserves all rights, title and interest in and to the Service, and any technology or information developed by Waypoint in connection with the performance of any services hereunder, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Customer shall not access the Service in order to build a competitive product or service, or copy any features, functions or graphics of the Service. Customer shall not (a) make the Service available to, or use any Service for the benefit of, anyone other than Customer, (b) sell, resell, rent or lease the Service, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, or (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein.
3.2 Suggestions. Waypoint shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Service.
3.3 Use and Disclosure of Customer Data. Notwithstanding any provision of the Agreement to the contrary, Waypoint shall have a royalty-free, worldwide, irrevocable, perpetual right (i) to retain, copy, create derivative works of, and use internally Customer Data and other data that is provided by Customer or collected by Waypoint, (ii) to distribute and disclose Customer Data and other data that is provided by Customer or collected by Waypoint to BOMA, to third parties that assist Waypoint in the provision of the Service to Customer, and to such other third parties as Customer may approve from time to time, and (iii) to develop, distribute and commercialize benchmarks and other offerings based on De-Identified Data, where “De-Identified Data” shall mean Customer Data and other data that is provided by Customer or collected by Waypoint that is (a) anonymized, and (b) presented in a manner from which Customer’s identity may not be derived.
3.4 Federal Government End Use Provisions. This provision shall apply only to the extent Customer is a Federal Government user. Waypoint provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Waypoint to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
4.1 Definition of Confidential Information. “Confidential Information” means any and all non-public information provided or revealed by one party (“Discloser”) to the other party (“Recipient”) or otherwise learned by a party during the course of performance under this Agreement, including without limit software, programs, processes, documentation, financial, marketing, technical, employee and other business information, where such information is identified as confidential at the time of disclosure, or is disclosed under circumstances that one would reasonably expect it to be treated as confidential. Confidential Information of Waypoint shall include the terms and conditions of this Agreement, including all data and content contained therein, the Service and its documentation and information provided in connection with Customer’s use of the Service. Confidential Information does not include information that: (i) is or becomes public through no fault or breach by Recipient, (ii) is or becomes known to Recipient (either directly or rightfully through a third party) without an obligation of confidentiality, (iii) is independently developed by Recipient without use of Discloser’s Confidential Information, or (iv) is disclosed with the prior written approval of Discloser.
4.2 Protection of Confidential Information. Recipient shall hold Discloser’s Confidential Information in confidence and will not disseminate or disclose the Confidential Information to any third party except as expressly permitted in this Agreement. Recipient will protect Discloser’s Confidential Information with the same degree of care it uses to protect its own confidential information of a similar nature, but in no event will Recipient use less than a reasonable degree of care. Recipient will use Discloser’s Confidential Information solely to the extent necessary to exercise its rights and obligations under this Agreement. All Confidential Information is and shall remain the sole property of Discloser, and Recipient shall not acquire any rights or licenses therein except as expressly set forth in this Agreement.
4.3 Compelled Disclosure. Recipient shall have the right to disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that, where permitted by applicable law, Recipient provides Discloser with reasonable notice so that Discloser may contest such order or requirement. Any Confidential Information disclosed pursuant to the foregoing sentence shall remain Confidential Information for all other purposes.
4.4 Equitable Relief. Recipient agrees that any breach of this section may result in irreparable harm to Discloser for which monetary damages may not be sufficient and that Discloser will be entitled to seek equitable relief without prejudice and in addition to any other rights or remedies it may have.
THE SERVICE ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WAYPOINT DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN ANY TERRITORY OR JURISDICTION WITH RESPECT TO THE SERVICE PROVIDED UNDER THIS AGREEMENT AND THE RESULTS WHICH MAY BE OBTAINED THEREFROM. THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, QUALITY OF SERVICE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. Customer acknowledges that the content that may be reported through the Service is necessarily limited in scope and should not be viewed as representative of the entire industry.
Customer shall defend Waypoint, at Customer’s expense, from any claim, demand, suit or proceeding made or brought against Waypoint arising from or in connection with the Customer Data, or Customer’s use of the Service in breach of this Agreement or in violation of applicable law (each, a “Claim”). Customer shall indemnify and hold Waypoint harmless from any damages, attorneys’ fees and costs finally awarded against Waypoint as a result of, and for amounts paid by Waypoint under, a court-approved settlement of, a Claim; provided that Waypoint (a) promptly gives Customer written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally releases Waypoint of all liability), and (c) provides to Customer all reasonable assistance, at Customer’s expense.
IN NO EVENT SHALL WAYPOINT’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE $500. IN NO EVENT SHALL WAYPOINT HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT WAYPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.1 Term of Agreement. This term of this Agreement commences on the Effective Date and, unless earlier terminated as set forth herein, continues for a period of one year, after which this Agreement will automatically renew for additional periods of one year each, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Waypoint may terminate this Agreement at any time for convenience upon 30 days written notice to Customer. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.2 Surviving Provisions. The sections titled “Proprietary Rights,” “Confidentiality,” “No Warranty,” “Indemnification,” “Limitation of Liability,” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement.
9.1 Export Compliance. The Service, other Waypoint technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each of Waypoint and Customer represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
9.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv), except for notices of termination or an indemnifiable claim (“Legal Notices”), the first business day after sending by email. Notices to Waypoint shall be addressed to the attention of its CEO, at Waypoint Building Group, Inc., 847 Sansome Street, Suite 300, San Francisco CA 94111; email email@example.com. Notices to Customer shall be addressed to the relevant Service system administrator designated by Customer.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
This Agreement or any obligations or responsibilities thereunder may not be assigned by either party without the prior written approval of the other party, except that an assignment of this Agreement in its entirety to (i) a parent or subsidiary of either party, (ii) an acquirer of substantially all of the assets or the majority of ownership interest in either party, or (iii) successor by merger shall be permitted upon written notice to the other party. Except as provided above, any such assignment, encumbrance, delegation or subcontract made without the express written consent of the other party shall be null and void.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
9.4 Governing Law and Dispute Resolution. This Agreement, and any non-contractual obligations arising from or in connection with it, shall be governed by, and construed in accordance with, the laws of the State of California without giving effect to the choice of law principles thereof and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The parties agree any litigation to settle any controversy, claim or dispute arising out of or relating to the interpretation or application of any term or provision of this Agreement or otherwise relating to the provision of the Service that the parties are unable to settle through consultation and negotiation shall be brought solely and exclusively in the federal and state courts located in San Francisco, California, and each party expressly consents to the venue and jurisdiction of such courts and waives any and all objections or rights as to forum non conveniens, lack of personal jurisdiction or legal grounds.
9.5 Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.