BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, 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 AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. 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 SERVICES.
These Terms of Service constitute an agreement (this “Agreement”) by and between CxAlloy (“Vendor”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” or executes an order form referencing this agreement (the “Effective Date”). Customer’s use of and Vendor’s provision of Vendor’s System (as defined below in Section 1.6) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
You may have another written agreement directly with CxAlloy (e.g., a volume license agreement) that supplements or supersedes all or portions of this agreement.
The following capitalized terms shall have the following meanings whenever used in this Agreement.
1.2. “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users.
1.3. “Documentation” means Vendor's documentation and multimedia content related to use of the System and made available through the Software and CxAlloy website, and any other materials provided to You by CxAlloy pursuant to this agreement.
1.4. “Order” means an order for access to the System.
1.6. “System” means Vendor’s web service provided at cxalloy.com and its subdomains and any accompanying applications provided by Vendor to access the service.
1.7. “Licensed Software” means such elements of the System as Customer or Customer’s Clients are to run on its computers, as set forth in the applicable Order.
1.8. “Customer’s Clients” means any of Customer’s clients or customers or other third parties Customer gives access to the System, including without limitation such companies’ agents and employees.
1.9. “Term” is defined in Section 12.1 below.
1.10. “User” means any company or individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including without limitation Customer’s Clients and their employees and agents. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
1.11. “We,” “Us,” “Our,” or “CxAlloy” means the cxalloy.com division of WorkingBuildings, LLC.
1.12. “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2.1. Use of the System. During the Term, Customer may access and use the System pursuant to: (a) the terms of any outstanding Order, including such features and functions as the Order requires; and (b) Vendor’s policies posted on its Website at http://www.cxalloy.com/terms, as such policies may be updated from time to time.
2.3. Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
2.4. System Revisions. Vendor may revise System features and functions at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding. Unless otherwise agreed to in a separate document, Vendor is under no obligation to provide Customer with any modifications, customizations, enhancements, or revisions to the System.
2.5. Customer’s Clients. Subject to the provisions below of this Section 2.5, Customer may authorize Customer’s Clients to access and use the System in such numbers and according to such restrictions as are set forth in the applicable Order. Customer shall provide complete name and email information for each proposed Customer’s Client upon or before providing such access, and update such information as soon as it become aware of a change. Customer shall make no representations or warranties regarding the System or any other matter, to Customer’s Clients or Users or any other third party, from or on behalf of Vendor, and Customer shall not create or purport to create any obligations or liabilities for Vendor. Customer shall be jointly and severally liable to Vendor for Customer’s Clients’ acts and omissions related to the System. Vendor shall have no obligation to provide support or other services, or other remedies to Customer’s Clients.
3.1. License. Vendor hereby grants Customer a nonexclusive license to reproduce and use the Licensed Software, in such quantities as are set forth on the applicable Order, as necessary for Customer’s internal business purposes and solely as a component of the System, provided Customer complies with the restrictions set forth below in Section 3.2 (Restrictions on Software Rights). Such internal business purposes do not include use by any parent, subsidiary, or affiliate of Customer, or any other third party other than Customer’s Clients as specifically authorized in this Agreement, and Customer shall not permit any such use.
3.2. Restrictions on Software Rights. Copies of the Licensed Software created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Licensed Software itself. Furthermore, Customer receives no rights to the Licensed Software other than those specifically granted in Section 3.1 above. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Licensed Software; (b) use the Licensed Software in any way forbidden by Section 7.1 below; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Licensed Software’s source code.
3.3. Delivery. Vendor shall provide the Licensed Software to Customer, through a reasonable system of electronic download, within 7 days of the Effective Date.
Customer shall pay Vendor the fee set forth in each Order (the “Subscription Fee”) for each Term. Vendor will not be required to refund the Subscription Fee under any circumstances.
5.1. Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Vendor’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Vendor shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
5.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
5.4. Data Accuracy. Vendor shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
5.5. Data Deletion. Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 90 days or more.
5.6. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 5, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)
5.7 Marketing. Notwithstanding the provisions above of this Article 5, Vendor may use your company name or logo in its advertising unless and until you tell us in writing not to.
6.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
6.3. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
7.1. IP Rights to the System. Vendor retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components, except to the limited extent that this Agreement specifically sets forth Customer license rights to Licensed Software. Customer recognizes that the System and its components are protected by copyright and other laws.
7.2. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Customer’s Clients, or other Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the Customer’s Client or other User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.)
“Confidential Information” refers to the following items Vendor discloses to Customer: (a) any document Vendor marks “Confidential”; (b) any information Vendor orally designates as “Confidential” at the time of disclosure, provided Vendor confirms such designation in writing within 30 business days; (c) the Documentation, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by Vendor, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Vendor.
8.1. Nondisclosure. Customer shall not use Confidential Information for any purpose other than its intended business purpose. Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Customer’s internal business purposes and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 8; and (b) shall not disclose Confidential Information to any other third party without Vendor’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Vendor prompt notice of any such legal or governmental demand and reasonably cooperate with Vendor in any effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense.
8.2. Injunction. Customer agrees that breach of this Article 8 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Vendor will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
8.3. Termination & Return. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Vendor or certify, in writing, the destruction thereof.
8.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Vendor will retain all right, title, and interest in and to all Confidential Information.
9.1. From Vendor. Vendor represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. In the event of a breach of the warranty in this Section 9.1, Vendor, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 9.1 and for potential or actual intellectual property infringement by the System.
9.2. From Customer.
(a) Re Customer Itself. Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
(b) Re Customer’s Clients. Customer represents and warrants that, to the best of its knowledge: (i) Customer will accurately identify each Customer’s Client and will not provide any inaccurate information about a Customer’s Client or other User to or through the System.
9.3. Warranty Disclaimers. Except to the extent set forth in Section 9.1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer shall indemnify and defend Vendor and Vendor’s Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Customer’s Clients or other Users or by Customer's or Customer’s Clients’ employees; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; (d) claims that use of the System through Customer’s account, including by Customer’s Clients or other Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims pursuant to the preceding sentence also include (f) claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees. Indemnified Claims include, without limitation, claims arising out of or related to Vendor’s negligence. Customer’s obligations set forth in this Article 10 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
11.1. Exclusion of Consequential Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
11.2. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 11 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 11, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 11 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
12.1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the period set forth in the Order or, if none, for one month. Thereafter, the Term will renew for successive one month periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
12.3. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 7 (IP & Feedback), 8 (Confidential Information), 9.3 (Warranty Disclaimers), 10 (Indemnification), and 11 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
13.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
13.2. Notices. Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Any notice required by this Agreement or given in connection with it by Customer, shall be in writing and shall be given to the appropriate party by personal delivery, overnight courier service, or by registered or certified mail, postage prepaid, or recognized overnight delivery services.
If to Vendor:
1230 Peachtree St NE, Suite 300
Atlanta, Georgia 30309
Attn: Chief Financial Officer of Vendor.
13.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
13.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 13.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
13.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
13.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
13.7. Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Georgia, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Atlanta, Georgia.
13.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
13.10. Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo.
13.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
13. 13. Dispute Resolution by Arbitration. YOU AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS, THE SITE AND/OR THE SERVICE SHALL BE FINAL AND BINDING ARBITRATION, except that: (a) either of us may seek injunctive relief in state or federal court located in Atlanta, Georgia concerning infringement, misappropriation or other violation by either of us of the other party's Intellectual Property Rights, and (b) Vendor may seek injunctive relief in state or federal court located in Atlanta, Georgia concerning violation by a User of any of these Terms, and in both such cases (a) and (b), the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration shall be in Atlanta, Georgia, and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
13.14. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action that you may wish to assert related in any manner to the Service must be filed within one (1) year after such claim or cause of action accrued or be forever barred.