BY ACCEPTING THESE TERMS OF USE (THE “TERMS”) THROUGH USE OR ACCESS OF THE SOFTWARE, OR OTHERWISE ELECTRONICALLY INDICATING YOUR ACCEPTANCE, YOU: (I) AGREE TO THE TERMS AND CONDITIONS OF THESE TERMS, AND OUR PRIVACY POLICY; (II) REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND RESIDE IN THE UNITED STATES; AND (III) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH THESE TERMS OR THE PRIVACY POLICY, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE OR ACCESS THE SOFTWARE.
Nature of the Software
The Software, referred to as Bidtracer, is a cloud based construction software with CRM, bid management, invitations to bid, project management, and tools for building automation and controls, and service estimating (the “Software”). The Software is subscription based and nothing in these Terms conveys, assigns, or transfers any form of ownership in or to the Software. Your use and access as an authorized user of the Software is conditioned on the applicable License and Service Agreement, or other applicable agreement governing the provision of the Software, between us (the “Provider”, “we”, “us”, or “our”) and the entity that authorized you as a user (the “Customer”, “you”, or “your”) being in good standing at all times during the subscription term.
Use of Software
You shall use the Software only for the intent of its design and as described in these Terms. By using the Software, you assume all responsibilities, liabilities and/or consequences that may occur as a result of your use. Customer’s subscription for numerous user licenses does not relieve any user from these Terms and you and Customer assumes all liability and responsibility for your acts, omission, and use of the Software.
Restrictions
You may use the Software only for lawful purposes and in accordance with these Terms. To the maximum extent allowable under applicable law, you agree not, and will not permit any third party, to use the Software:
for the purpose of exploiting, harming, or attempting to exploit or harm person in any way by exposing them to inappropriate content, asking for personally identifiable information of minors, or otherwise;
to send, knowingly receive, upload, download, use, or re-use any material that does not comply with these Terms;
to transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation;
to impersonate or attempt to impersonate the Provider, a Provider employee, another user, or any other person or entity;
to access or use the Software to collect any market research for a competing business;
use, disassemble, reverse engineer, or decompile the Software or any part thereof;
to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Software, or which, as determined by Provider, may harm Provider or users of the Software, or expose Provider to liability; or
in any manner that could disable, overburden, damage, or impair the Software or interfere with any other party’s use of the Software.
Additionally, you agree you will not (and will not allow any third party to):
sell, resell, license, otherwise transfer, sublicense, distribute, make available, rent or lease the Software or any part thereof, or include the Software or any part thereof in a service bureau or outsourcing offering;
use any robot, spider, or other automatic device, process, or means to access the Software for any purpose, including monitoring or copying any of the material on the Software;
use any manual process to monitor or copy any of the material on the Software, or for any other purpose not expressly authorized in these Terms, without Provider’s prior written consent;
use any device, software, or routine that interferes with the proper working of the Software;
permit direct or indirect access to or use of the Software or any part thereof in a way that circumvents a contractual usage limit, or use any of the Software to access or use any of Provider intellectual property except as permitted under these Terms;
modify, copy, or create derivative works based on the Software or any part thereof or any part, feature, function or user interface thereof;
introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Software, including without limitation the source code, the server on which the Software is stored, or any server, computer, or database connected to the Software; or
attack the Software via a denial-of-service attack or a distributed denial-of-service attack;
access the software to build a competing product;
use the software for competitive benchmarking.
Ownership
The Software and its entire contents, features, and functionality are owned by Provider, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. No right, title, or interest in or to the Software or any content on the Software is transferred to you, the Customer, or any other user, and all rights not expressly granted are reserved by Provider. Any use of the Software not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
These Terms permit you to use the Software solely as described in these Terms. You must not: (i) reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Software; (ii) modify copies of any materials from the Software; or (iii) delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Software.
Any ideas, suggestions, comments, questions, or the like shared by you or the Customer to the Provider enhancing, suggesting, or recommending changes to the Software, including without limitation, new features or functionality relating to the Software, belong solely to the Provider and Provider is free to use such feedback without any other action or limitation.
Privacy and Confidentiality of Login Credentials
You will not discuss with any other third party the cost associated with the Customer’s subscription cost, or any other agreements made between the Provider that are specific to the Customer.
Each account to use the Software is intended for use by a single authorized user as designated by the Customer. You must treat your login credentials as confidential and not disclose it to any third party, including your username, password, or any other information. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Software or portions of it using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. We may take any action, including suspension of your account, forcing immediate log off, and/or disabling access, if we suspect unauthorized use or excessive attempts. The Provider shall not be held responsible for any loss of data or work interruption caused by such forced logoff events. It is a condition of your use of the Software that all the information, including Customer Materials you provide is correct, current, and complete.
To enhance the security framework for all users of the Software, you may be required to utilize Multi-Factor Authentication (“MFA”) when attempting to log into your account. MFA involves a secondary verification process, where a unique code will be sent via SMS to the user’s mobile device or through a designated MFA application. Your information is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
The Provider reserves the right to update or modify these security measures as deemed necessary and will communicate any such changes to the Customer.
Use of Corporate Names
Our name, the Bidtracer logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Provider or our affiliates or licensors. You must not use such marks without our prior written permission. All other names, logos, designs, and slogans displayed on the Software are the trademarks of their respective owners. The Provider assumes no liability for the use of any corporate name, logo, design or slogan, entered by a user. You and the Customer assume all responsibility for its use and any liabilities relating to misappropriation or infringement of the rights of any third parties to such corporate names and marks. You and the Customer are responsible for ensuring its use of any corporate names or trademarks is in compliance with the appropriate laws and regulations.
Customer Materials
WE ARE NOT RESPONSIBLE OR LIABLE TO ANY USER OR THIRD PARTY FOR THE CONTENT OR ACCURACY OF ANY CUSTOMER MATERIALS POSTED BY YOU OR ANY OTHER USER OF THE SOFTWARE.
The Software contains features that allow users to submit, publish, display, or transmit content or materials (“Customer Materials”) on or through the Software. You represent and warrant that all Customer Materials comply with applicable law and these Terms. You agree and acknowledge that, as necessary for the Software, your Customer Materials is intended and authorized to be shared with other users. You understand and acknowledge that you are solely responsible for any Customer Materials you submit, communicate or contribute, and you and Customer, not Provider, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. Provider has no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section. Provider has the right, but no obligation, to remove or refuse to transmit any Customer Materials in its sole discretion. Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Software.
PLEASE NOTE CUSTOMER MATERIAL THAT YOU POST OR SHARE WITH OTHER USERS THROUGH THE SOFTWARE WILL BE SEEN AND MAY BE USED BY OTHER USERS, AND PROVIDER CANNOT CONTROL HOW OTHER USERS WILL USE SUCH CUSTOMER MATERIALS. IF YOU HAVE ANY INFORMATION THAT YOU WOULD LIKE TO KEEP CONFIDENTIAL, THAT YOU DO NOT WANT OTHERS TO USE, AND/OR THAT IS SUBJECT TO THIRD-PARTY RIGHTS THAT MAY BE INFRINGED BY YOUR SHARING IT, DO NOT POST IT ANYWHERE ON OR THROUGH THE SOFTWARE OR THE SITE. WE ARE NOT RESPONSIBLE FOR ANY USER’S MISUSE OR MISAPPROPRIATION OF ANY IDEA, CONTENT, OR INFORMATION THAT YOU POST ON OR THROUGH THE SITE OR SOFTWARE. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS, OR USEFULNESS OF CUSTOMER MATERIALS. ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER USER OF THE SOFTWARE, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.
You acknowledge and agree that we may disseminate aggregated, non-confidential data of the Customer or its users to its manufacturing and distribution collaborators, including, the quantities of products that have been estimated, engineered, and potentially procured via the Software. Any such data shall be in an aggregate form to preclude the disclosure of any confidential or proprietary information, and no specific project names, locations, or any other identifiable details of any individual will be disclosed unless otherwise expressly consented to by Customer in writing.
NO WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE, ITS CONTENT, AND ANY INFORMATION OBTAINED THROUGH THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY KIND OF WARRANTY STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, QUITE ENJOYMENT, COURSE OF DEALING, USAGE OF TRADE, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. YOU AND THE CUSTOMER ACCEPT FULL RESPONSIBILITY FOR ANY POSSIBLE CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES FROM ITS USE. THE PROVIDER IS NOT RESPONSIBLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE IF ANY KIND RELATED TO YOUR USE OF THE SITE OR SOFTWARE, OR INACCESSIBILITY OF THE SITE OR SOFTWARE WHETHER FROM ERRORS OR OMISSIONS IN THE CONTENT OF THE SITE OR SOFTWARE OR ANY OTHER LINKED SITES OR FOR ANY OTHER REASON. USE OF THE SITE OR SOFTWARE IS AT YOUR OWN RISK. THE PROVIDER DOES NOT REPRESENT OR WARRANT THE SITE OR SOFTWARE, ITS SERVER OR ANY LINKED SITES ARE FREE OF ANY HARMFUL MATERIALS OR ANY REPRESENTATIONS OR WARRANTIES RELATING TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SOFTWARE. THE PROVIDER DOES NOT REPRESENT OR GUARANTEE THAT THE INFORMATION ON THE SITE OR SOFTWARE OR ANY SITE LINKED TO THE SITE IS ACCURATE, UP TO DATE OR APPROPRIATE FOR YOUR SPECIFIC SITUATION. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
ARTIFICIAL INTELLIGENCE
YOU ACKNOWLEDGE THAT THE SOFTWARE AND RELATED FEATURES AND SUPPORT MAY INCORPORATE AND UTILIZE ARTIFICIAL INTELLIGENCE (“AI”) TECHNOLOGIES TO FACILITATE AND ENHANCE VARIOUS FUNCTIONALITIES. THESE AI TECHNOLOGIES MAY INCLUDE, BUT ARE NOT LIMITED TO, MACHINE LEARNING, NATURAL LANGUAGE PROCESSING, AND DATA ANALYTICS CAPABILITIES DESIGNED TO OPTIMIZE THE PERFORMANCE AND EFFICIENCY OF THE SOFTWARE. YOU UNDERSTAND AND AGREE THAT DECISIONS AND OUTPUTS GENERATED BY THE AI TECHNOLOGIES ARE BASED ON THE DATA PROVIDED AND THE ALGORITHMS EMPLOYED BY THE AI. WHILE WE ENDEAVOR TO DESIGN ITS AI TECHNOLOGIES TO BE AS ACCURATE AND RELIABLE AS POSSIBLE, YOU ACKNOWLEDGES THAT AI-GENERATED DECISIONS AND OUTPUTS ARE INHERENTLY PROBABILISTIC AND MAY NOT ALWAYS ACHIEVE THE DESIRED ACCURACY, COMPLETENESS, OR RELEVANCE. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF THE AI-GENERATED DECISIONS AND OUTPUTS COMPLIES WITH ALL APPLICABLE LAWS, REGULATIONS, AND POLICIES, INCLUDING BUT NOT LIMITED TO THOSE RELATING TO DATA PRIVACY AND PROTECTION. ALL INTERACTIONS WITH THE AI FEATURE ARE SUBJECT TO OUR PRIVACY POLICY. WHILE WE STRIVE TO PROVIDE ACCURATE AND RELIABLE AI-GENERATED RESPONSES, WE DO NOT GUARANTEE THAT THE INFORMATION PROVIDED BY THE AI FEATURE WILL BE FREE FROM ERRORS OR OMISSIONS. YOU SHOULD EXERCISE JUDGMENT AND VERIFY THE AI-GENERATED INFORMATION BEFORE RELYING ON IT FOR DECISION-MAKING PURPOSES. WE CONTINUALLY SEEK TO IMPROVE THE FUNCTIONALITY AND ACCURACY OF ITS AI FEATURES. AS SUCH, WE RESERVE THE RIGHT TO MAKE MODIFICATIONS, ENHANCEMENTS, OR DISCONTINUE THE AI FEATURE AT ANY TIME WITHOUT PRIOR NOTICE.
Indemnification
You agree to indemnify and hold harmless the Provider, its directors, officers, employees, agents, successors and assigns from and against any claims, liabilities, demands, or damages, judgements, awards, losses, costs, expenses, or fees, including reasonable attorneys’ fees, court costs and expenses and investigatory expenses, threatened or asserted by any third party due to or arising out your use of the Software, conduct on our website (the “Site”), or violation of these Terms.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PROVIDER OR ITS EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS WILL BE LIABLE TO YOU OR ANY PERSON FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SOFTWARE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PROVIDER WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF PROVIDER AND ITS EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO YOU (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS ($100). THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW OR THE LIABILITY OR EXCULPATORY PROVISIONS BETWEEN CUSTOMER PROVIDER PURSUANT TO THE CUSTOMER SERVICES AGREEMENT.
Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Modification to Terms and Conditions of Software
THESE TERMS AND THE SOFTWARE MAY BE MODIFIED, AMENDED, SUSPENDED OR DISCONTINUED BY PROVIDER IN ITS SOLE AND ABSOLUTE DISCRETION AT ANY TIME. The Provider reserves the right to change the Terms and Conditions of Software or policies regarding the use of the Software or Site at any time and to notify you by revising or posting updates on the Site or in the Software. Changes will be effective immediately when posted. Continued use of the Software is deemed your consent to and acceptance of these Terms as revised. If you do not agree to any change(s) your sole remedy is to stop using and accessing the Software.
Enforcement
If a court or any other body having the power to rule on disputes decides that any part of these Terms are not reasonable or cannot be enforced for any reason, this decision will not affect the validity of the remainder of these Terms and which will continue to be in full force and effect.
Waiver
No waiver by Provider of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Provider to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
Governing Law and Venue
The Terms, and all matters related thereto, are governed by the laws of the State of Wisconsin, without giving effect to any choice or conflict of law provision or rule, and any legal suit, action or proceeding related to these Terms or the Software will be instituted in the exclusive jurisdiction of the courts of the State of Wisconsin, US
