Platform Terms & Conditions
Background
Building Swell, Inc. (“Building Swell”) has developed and makes available to its customers on a subscription basis a proprietary software-as-a-service platform (together with applicable related services, interfaces and access provided by Building Swell, the “Platform”) providing a cloud-based solution to help industrialized builders manage their shop operations through tools designed to streamline the tracking, scheduling, material ordering, inventory management, quality control and optimization related to shop operations. These Platform Subscription Terms andConditions (“Platform Terms and Conditions”) are entered into by and between Building Swell and the entity or person (“Customer”) executing an Order Form (as defined below) for access to the Platform. This Agreement consists of the terms and conditions set forth below, any terms referenced herein and the initial order form or other online sign-up or subscription flow (the “Initial Order Form”) that references this Agreement, togther with any Future Order Forms (as defined below). If you are executing an Order Form or otherwise accessing or using the Platform on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “Customer” refer to your company.
1. Access to PlATFORM; USe and REstrictions
1.1 Platform Subscription; Related Services. During the Term (as defined below) and subject to Customer’s compliance with this Agreement, Building Swell will permit Customer to access the Platform for purposes of using the functionality made available through the Platform, solely for Customer’s internal business use and subject to the maximum number of Authorized Users set forth the applicable Order Form. Subject to the terms and conditions of this Agreement, Building Swell hereby grants Customer a limited, nonexclusive, non transferable, non-sublicensable right, during the Term to access and use the Platform solely during the Term and solely for Customers internal business purposes, in accordance with the user documentation for the Platform that Building Swell makes generally available to users of the Platform (the “Documentation”) and Building Swell’s reasonable instructions. Customer is solely responsible for ensuring Customer’s own functional internet access and related technological functionality to access the Platform consistent with the Documentation. The Platform includes any updates that are made generally available to Building Swell’s customers at no additional charge during the Term (as defined below), but expressly excludes any upgrades or additional services, features or analytics that are made available by BuildingSwell for an additional charge, except to the extent Customer elects to receive such upgrades or additional features pursuant to an agreement with Building Swell. If Building Swell will perform implementation, customization, or other services in connection with this Agreement, they will be specified in the applicable Order Form, including a description of what the include and, if applicable, the fees payable for such services. Such services and any associated deliverables shall be deemed included in the “Platform” for purposes of Building Swell’s representations and warranties, and the indemnification obligations set forth in this Agreement.
1.2 Order Forms. Building Swell and Customer have entered into an Initial Order Form incorporating these Platform Terms and Conditions. From time to time hereafter, Customer and BuildingSwell may enter into additional Order Forms that expressly reference, and are governed by, this Agreement (“Future Order Forms” and together with the Initial Order Form, each an “Order Form”) pursuant to which Customer will purchase rights to access and use certain features of the Platform and/or agree to additional services to be provided by Building Swell. Such Future Order Forms areand will be incorporated by reference into this Agreement to create with respect to the rights and services described in the applicable Future Order Form(s), in each case to the exclusion of any other terms or conditions that are implied by course of dealing. To the extent of any conflict between a term of these Platform Terms and Conditions and an Order Form or Future Order Form, the terms of the applicable Order Form or Future Order Form shall control to the extent of such conflict.
1.3 Accounts. In order to access and use the Platform, Customer will need to register and create an account (“Account”). Customer agrees to provide accurate, current and complete information about the Account, which includes all individual sub-accounts (each an “Authorized User Account”) established for individuals who have been authorized by the Customer to access the Account and assigned a unique username-password combination to access and use the Platform on behalf of Customer and subject to the number of authorized users permitted under the applicable Order Form (each an “Authorized User”). Building Swell reserves the right to suspend or terminate the Account or any individual Authorized User Account, if any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading. Customer is responsible for maintaining the confidentiality of Customer’s passwords and Customer’s Account, including all user names and passwords information assigned to its Authorized Users with respect to each Authorized User Account, and agrees to notify Building Swell if any of the passwords is lost, stolen, or disclosed to an unauthorized third-party, or otherwise may have been compromised. Customer is responsible for all activities that occur under the Account, including the activities carried out by individual employees, contractors or others.
1.4 Use Restrictions. Customer will not permit access to the via Customer’s account by any person other than Authorized Users. Customer will be responsible and liable for complianceby all Authorized Users with the terms and conditions of this Agreement. Except as expressly permitted hereunder, neither Customer nor any Authorized User will, or will permit or authorize any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform; (b) modify, translate or create derivative works based on, the Platform; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance to be created or maintained with respect to the Platform; (d) use the Platform for the benefit of a third party, except as otherwise expressly authorized under this Agreement;(e) hack, manipulate or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (f) remove or obscure any proprietary notices or labels of Building Swell or its suppliers on the Platform, (g) access or use any areas or features of the Platform for which Building Swell has not granted Customer access, or (h) encourage, authorize or enable anyone to do any of the foregoing.
1.5 Modifications and Updates. Building Swell reserves the right, at any time and from time to time, to modify or discontinue, temporarily or permanently, the Platform or any feature or functionality thereof without prior notice to Customer. Building Swell will use its best efforts to notify Customer of any upcoming system maintenance and/or service disruptions that may affect Customer’s ability to use the features of the Platform to which Customer has been granted access pursuant to this Agreement.
1.6 Third-Party Service Providers. Customer acknowledges that Customer may engage agents and subcontractors to perform services related to providing the Platform described in a Statement of Work. Building Swell shall be responsible for the fulfilment of its obligations hereunder, notwithstanding the performance of any of its obligations by any third-party service providers. To the extent third-party service providers receive access to Customer Personal Information (as defined below) in connection with their performance of services as described herein, their use of such Customer Personal Information shall be limited to the purposes of performing the applicable services under such service provider’s agreement with Building Swell.
2. Ownership; Reservation of Rights
2.1 Customer Data. Customer or its applicable licensors own the raw data, files, text, graphics, images, software, works of authorship, and information or other materials that Customer transmits to, uploads to, transfers to, processes on, stores in, or causes to interface with, the Platform (“Customer Data”). Customer hereby grants Building Swell a nonexclusive, worldwide, royalty-free, fully paid up, sublicensable, nontransferable (except as set forth in Section 9) right and license to (a) copy, use, modify, distribute and display Customer Data solely to the extent necessary to perform its obligations under this Agreement, (b) copy, modify and use Customer Data solely in aggregate and/or anonymized form in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions, archival purposes and improving Building Swell’s products and services, and (c) copy, use, modify, distribute and display Customer Data soley in aggregate and/or anonymized form, solely to the extent that the aggregate data does not include information that identifies or would reasonably be expected to identify Customer or any of Customer’s customers. Notwithstanding any contrary statement herein, Building Swell’s rights to use Customer Data pursuant to clauses (b) and (c) of the foregoing sentence shall apply solely to the extent that all Customer Data so used (1) constitutes “aggregate consumer information” and/or “deidentified” information (each as defined in California Civil Code Section 1798.140) and (2) and meets all applicable requirements for anonymization and/or aggregation to permit such use under applicable law. As between the parties, Customer reserves any and all right, title and interest in and to the Customer Data other than the licenses therein expressly granted to Building Swell under this Agreement.
2.2 Customer Personal Informtation. Building Swell will not retain, use, or disclose Customer Personal Information for any purpose other than for performing its obligations hereunder or as required by law or otherwise expressly stated herein. “Customer Personal Information” means Customer Data that constitutes personal information of a consumer that is subject to the California Consumer Privacy Act of 2018, California Civil Code Section 1798.100 et seq. Building Swell may aggregate, deidentify, or anonymize Customer Personal Information, and may use such aggregated, deidentified, or anonymized data as set forth in Section 2.1(b) and (c) solelyto the extent such data constitutes either “aggregate consumer information” and/or “deidentified” information (each as defined in California Civil Code Section1798.140). Building Swell will neither attempt to nor actually re-identify any previously aggregated, deidentified, or anonymized data. Building Swell may use Customer Personal Information to detect data security incidents or protect against fraudulent or illegal activity, or for internal use by Building Swell to improve its services provided that such use does not include building or modifying household or consumer profiles to use in providing services to another business, or correcting or augmenting data acquired from another source.
2.3 Ownership; Reservation of Rights. Customer acknowledges and agrees that, as between the parties, Building Swell retains all rights, title, and interest in and to the Platform, all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. Building Swell does not grant any, and reserves any and all, rights otherthan the rights expressly granted to Customer under this Agreement with respect to the Platform.
2.4 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Building Swell with respect tothe Platform or other aspects of Building Swell’s products, services and/or business. Building Swell will have full discretion to determine whether or not to proceed with the development any requested enhancements, new features or functionality included in any Feedback. Customer hereby grants Building Swell a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported,rent, provide and/or lease products or services which practice or embody, orare configured for use in practicing, the Feedback and/or any subject matter ofthe Feedback.
2.5 Customer Responsibilities. Only Customer’s authorized employees who have been assigned a unique login to the Platform are entitled to access and use the Platform under this Agreement. Customer will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and notify Building Swell promptly of any such unauthorized access or use, and (b) use the Platform only in accordance with the Documentation provided that if any provision off the Documentation conflicts with this Agreement, compliance with this Agreement shall be sufficient to comply with this Section 2.5 with respect to the subject matter of such provision), this Agreement and any applicable laws and regulations.
2.6 Privacy; Data Security. Building Swell will implement and maintain reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Customer Data that this Agreement doesnot expressly authorize, including, without limitation, an information security program that meets commercially reasonable industry practice to safeguard Customer Data. Such information security program shall include: (i) physical security of all premises in which Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to the employment of, access given to, and education and training of any and all personnel furnished or engaged by Building Swell to perform any part of the services hereunder. Personal information received in connectionwith the registration process or otherwise in connection with this Agreement will be processed in accordance with Building Swell’s Privacy Policy, available at https://www.buildingswell.com/privacy.
3. Fees; PAyment Terms
3.1 Fees; Payment Terms. By executing this Agreement, Customer agrees to pay Building Swell the fees set forth in the Order Form in accordance with the payment terms set forth in the Order Form. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one percent (1%) per month or the highest legal rate permitted by applicable law, and Customer will pay all reasonable expenses of collection associated with Building Swell’s efforts to collect any unpaid amounts due. In addition, if any past due payment has not been received by Building Swell within ten (10) days from the time such payment is due, Building Swell may suspend Customer’s access to the Platform until such payment is made.
3.2 Taxes. All amounts payable by Customer to Building Swell hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Building Swell. Customer will not withhold any Taxes from any amounts due Building Swell.
4. Term; TErmination
4.1 Term. Except to the extent stated otherwise in the applicable Order Form, the initial term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order Form, unless earlier terminated as set forth herein (the “Initial Term”). Thereafter, this Agreement and the subscription period will automatically renew for additional periods of the same duration (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least thirty (30) days’ prior to the end of the then-current Term.
4.2 Termination; Effect of Termination. Either party may terminate this Agreement if the other party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days (or ten (10) days in the case of non-payment) of receiving notice thereof. Upon any termination or expiration of this Agreement for any reason, Customer may request an export of the Customer Data then in Building Swell’s possession in a mutually agreed upon format within thirty (30) days of the effective date of such termination or expiration. Thereafter, Building Swell may, but is not obligated to, in its sole discretion and without delivery of any notice to Customer, delete any Customer Data stored or otherwise archived on the Platform or otherwise on Building Swell’s network. Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Building Swell to provide access to the Platform will immediately terminate and (a) Customer will cease use of the Platform; and (b) each party will return or destroy all copies or other embodiments of the other party’s Confidential Information (subject to Buidling Swell’s rights under Section 2.1(b) and (c)). Except with respect to a termination of this Agreement based on Building Swell’s uncured breach of this Agreement or a termination by Building Swell pursuant to Section 8.1, Customer shall not be entitled to any refund of previously paid subscription fees upon expiration or termination of this Agreement, and any fees due but unpaid at the time of such expiration or termination shall be paid within ten (10) days thereof.
4.3 Survival. Upon expiration or termination of this Agreement, all obligations inthis Agreement will terminate, provided that Sections 2.1(b), 2.1(c), 2.2, 2.3, 3, 4.2, 4.3, 5, 6.4, 7, 8, 9 and 10 will survive.
5. Confidentiality
As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, pricing, product usage data, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Building Swell’s Confidential Informationincludes, without limitation, the Platform and the terms of thisAgreement. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exerciseits rights under this Agreement. Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations and/or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
6. Representations, Warranties and DISCLAIMER
6.1 Representations and Warranties. Each party represents and warrants to the other party (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
6.2 Customer Representations and Warranties. Customer represents and warrants that it has the legal authority and all rights necessary to provide the Customer Data to Building Swell hereunder, and Customer’s provision of the Customer Data to Building Swell hereunder does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation.
6.3 Uptime. Building Swell will use reasonable efforts consistent with prevailing industry standards to provide the Platform and any related services provided in connection therewith in a manner that minimizes errors and interruptions in accessing and using the Platform. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Building Swell or by third-party providers, or because of other causes beyond Building Swell’s reasonable control, but Building Swell will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Buidling Swell’s control. Building Swell will provide telephone and e-mail support Monday through Friday, 8 a.m. through 6 p.m. Pacific Time.
6.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM AND ANY SERVICES PROVIDED IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS-IS”BASIS AND BUILDING SWELL DISCLAIMS ANY AND ALL WARRANTIES. BUILDING SWELL DOES NOT WARRANT THAT THE PLATFORM OR ITS OUTPUT WILL BE ERROR-FREE OR THAT OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED. BUILDING SWELL DOES NOT WARRANT THAT THE RESULTS GENERATED BY THE PLATFORM OR THE SERVICES PROVIDED IN CONNECTION THEREWITH ARE ACCURATE OR WILL LEAD TO ANY PARTICULAR OUTCOME, AND BUILDING SWELL EXPRESSLY DISCLAIMS ALL LIABILITY WITHRESPECT TO SUCH RESULTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED INTHIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTYOF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW),OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
7. LIMITATION ON LIABILITY
7.1 Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1, (B) EITHER PARTY’S BREACH OF SECTION 5, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.1 AND 8.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2 General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TO THE FULLEXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1, (B) EITHER PARTY’S BREACH OF SECTION 5, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.1 AND 8.2 BELOW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OFWHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED AN AGGREGATE AMOUNT EQUAL TO THE TOTAL FEES PAID BY CUSTOMER TO BUILDING SWELL UNDER THIS AGREEMENT DURING THE TWELVE-MONTH (12-MONTH) PERIOD IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
7.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSIONOF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8. INdemnification
8.1 Indemnificationfor Infringement. Building Swell will defend Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the Platform infringes any intellectual property right of a third party, and Building Swell will indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Building Swell’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the Platform by Customer or any party acting on Customer’s behalf without Building Swell’s express consent; (b) the combination, operation, or use of the Platform with other product(s), data or services without Building Swell’s authorization where the Platform would not by itself be infringing; or (c) unauthorized or improper use of the Platform. If the use of the Platform by Customer has become, or in Building Swell’s opinion is likely to become, the subject of any claim of infringement, Building Swell may, at its option and expense, (i) procure for Customer the right to continue using the Platform as set forth hereunder, (ii) replace or modify the Platform to make it non-infringing so long as the Platform has at least equivalent functionality, (iii) substitute an equivalent for the Platform or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement. This Section 8.1 states Building Swell’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2 Indemnification by Customer. Customer will defend Building Swell and the officers, directors, agents, and employees of Building Swell (“Building Swell Indemnified Parties”) against any Claims arising from (a) any use or disclosure by Customer of the Platform in violation of this Agreement, (b) any assertion that the Customer Data as provided to Building Swell and/or the provision of such Customer Data to Building Swell violates any third party intellectual property or privacy rights, and (c) Customer’s violation of this Agreement or applicable law. Further, Customer will indemnify the Building Swell Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
8.3 Indemnification Procedure. If a Customer Indemnified Party or a Building Swell Indemnified Party (each, an“ Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
9. Modification
Building Swell may update these Platform Terms and Conditions of this Agreement from time to time. Building Swell will post the updated version of these Platforrm Terms and Conditions (the “Updated Ts & Cs”) on its website, and will provide notice to Customer consistent with Section 10 (General) of the posting of such Updated Ts& Cs. Customer shall have ten (10) calendar days from receipt of such notice to provide written notice to Building Swell if Customer does not agree to the terms of the Updated Ts & Cs (an “Opt Out Notice”). If Customer delivers a timely Opt Out Notice, this Agreement shall remain subject to the Platform Terms and Conditions in effect as of the later of (i) the date this Agreement was executed or (ii) the last time Customer accepted an updated version of these Platform Terms and Conditions. If Customer does not deliver a timely Opt Out Notice, Customer shall be deemed to have accepted the updated Platform Terms and Conditions as posted, and this Agreement shall be amended to incorporate the Updated Ts & Cs. Without limiting the permitted methods of notice under Section 10, the parties acknowledge that notice by email to the email address provided in the applicable Order Form shall be sufficient for the foregoing purposes.
10. General
Customer agrees that Building Swell may list and/or identify Customer’s name (including by displaying any Customer trademark) to identify the business relationship between the parties on Building Swell’s website and in other marketing and advertising content. Customer may not remove or export from the United States or allow the export or re-export of the Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Subject to Section 9 (Modification), all waivers and modifications to this Agreement must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be inwriting and sent to the addresses (including email addresses) set forth in the Order Form and will be deemed to have been duly given when received, if personally delivered; on the first business day immediately following receipt, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the Platform may cause irreparable harm and injury to Building Swell for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer agrees that Building Swell may be entitled to injunctive relief in the event Customer uses the Platform in violation of this Agreement.
