Software License Terms and Conditions

Applicability

1. These Software License Terms and Conditions (these “Terms”) are the only terms that govern the license of the Software (as defined below) by BuildWitt Media Group, LLC, a Tennessee limited liability company (“Licensor”), to the customer identified on the Order Form, including its affiliates (“Licensee”). Licensor and Licensee are each individually referred to herein as a “Party” and together, the “Parties”. 
2. The accompanying order form for the Software (the “Order Form”) and these Terms (collectively, and as may be amended or otherwise modified from time to time, this “Agreement”) comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Form, these Terms shall govern, unless the Order Form expressly states that the terms and conditions of the Order Form shall control. 
3. This Agreement shall be effective immediately upon Licensee’s acceptance of these Terms and receipt of the Order Form (the “Effective Date”). By accessing and using the Software under this Agreement, Licensee acknowledges that it has read and agreed to be bound by all terms and conditions of this Agreement and all amended terms and conditions of these Terms. Licensee also acknowledges and agrees that it is responsible for ensuring all Authorized Users are aware of, and agree to, these Terms.
4. These Terms prevail over any of Licensee’s general terms and conditions regardless of whether or when Licensee has submitted its request for proposal, order, or such terms. Licensor’s provision of services to Licensee does not constitute acceptance of any of Licensee’s terms and conditions and does not serve to modify or amend these Terms.

Definitions

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise. 

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

“Agreement” has the meaning set forth in the preamble.

“Authorized User” means Licensee’s employees, consultants, contractors, and agents (i) who are authorized by Licensee to access and use the Software under the rights granted to Licensee pursuant to this Agreement and (ii) for whom use of the Software has been purchased hereunder.

“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in Nashville, Tennessee are authorized or required by Law to be closed for business.

“Confidential Information” has the meaning set forth in Section 10.1.  

“Disclosing Party” has the meaning set forth in Section 10.1. 

“Documentation” means Licensor’s user manuals, handbooks, and installation guides relating to the Software/end user documentation relating to the Software available at buildwitt.com that Licensor provides or makes available to Licensee which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.

“Effective Date” has the meaning set forth in Section 1.3.

“Force Majeure Event” has the meaning set forth in Section 16.9.

“Indemnitee” has the meaning set forth in Section 13.3.

“Indemnitor” has the meaning set forth in Section 13.3.

“Initial Term” has the meaning set forth in Section 15.1.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any United States statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Licensor Indemnitee” has the meaning set forth in Section 13.2.

“Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that Licensor may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version.

“New Version” means any new version of the Software that Licensor may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Licensor’s designation of a new version number), and which Licensor may make available to Licensee at an additional cost under a separate written agreement.

“Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.

“Open Source License” has the meaning set forth in Section 3.3.

“Party” and “Parties” have the meanings set forth in Section 1.1.

“Payment Failure” has the meaning set forth in Section 15.3(a).

“Permitted Use” means use of the Software by an Authorized User for the benefit of Licensee in the ordinary course of its internal business operations for construction training of employees.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Receiving Party” has the meaning set forth in Section 10.1.

“Renewal Term” has the meaning set forth in Section 15.2.

“Representatives” means, with respect to a Party, that Party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors. 

“Software” means the executable, object code version of the BuildWitt Training with current software version and release number as of the Effective Date and any Maintenance Releases provided to Licensee pursuant to this Agreement. 

“Term” has the meaning set forth in Section 15.2. 

“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (a) documents, data, content or specifications; (b) Open Source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

“Training Content” means all video and other educational content made available by Licensor through the Software.

License

1. License Grant. Subject to and conditioned on Licensee’s timely payment of Fees and compliance with all other terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 16.7) license to use the Software and Documentation solely for the Permitted Use during the Term.
2. Scope of Licensed Access and Use. Licensee may install, use, and run one copy of the Software at a time on a tablet or mobile device for each of those Authorized Users as stated on the Order Form. The total number of Authorized Users shall not exceed the number set forth under this Agreement, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable hereunder.
3. Open Source Licenses. The Software includes Open Source Components licensed under the MIT License and Apache License, Version 2.0 (each, an “Open Source License”). Any use of the Open Source Components by Licensee is governed by, and subject to, the terms and conditions of the Open Source Licenses.
4. Security Measures. The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. Licensee acknowledges and agrees that: (a) Licensor may use these and other lawful measures to verify Licensee’s compliance with the terms of this Agreement and enforce Licensor’s rights, including all Intellectual Property Rights, in and to the Software; (b) Licensor may deny any individual access to and/or use of the Software if Licensor, in its sole discretion, believes that person’s use of the Software would violate any provision of this Agreement, regardless of whether Licensee designated that person as an Authorized User; and (c) Licensor and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Licensee’s computers, systems and software, that Licensor may gather periodically to improve the performance of the Software or develop Maintenance Releases. This information will be treated in accordance with Licensor’s privacy policy, as amended from time to time, as posted on buildwitt.com or a successor website address.
5. Grant of License for Licensee’s Intellectual Property. Licensee hereby grants Licensor a revocable, non-exclusive, fully-paid, royalty-free, transferable, sublicensable, and limited license to access, use, reference, post, identify, or otherwise utilize its Intellectual Property Rights that Licensee transmits through the Software or otherwise provides to Licensor, for Licensor’s use solely in connection with delivery, performance, and improvement of the Software and Licensor’s services to Licensee.

License Restrictions

Except as this Agreement expressly permits, and subject to Section 3.3 with respect to Open Source Components, Licensee shall not, and shall not permit any Authorized User or other Person to:

Delivery

Licensor shall deliver one copy of the Software electronically or by other means, in Licensor’s sole discretion, to Licensee. 

Support Services

Licensor will provide configuration and support services for the Software as described on the Order Form, and Licensee may purchase additional support services thereafter, as mutually agreed by Licensor and Licensee, at Licensor’s then-current pricing.

Maintenance Releases

During the Term, Licensor will provide Licensee with all Maintenance Releases (including updated Documentation) that Licensor may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases provided by Licensor to Licensee are deemed Software. Licensee will install all Maintenance Releases as soon as practicable after receipt. Licensee does not have any right hereunder to receive any New Versions of the Software that Licensor may, in its sole discretion, release from time to time. Licensee may license any New Version at Licensor’s then-current list price and subject to a separate license agreement, provided that Licensee is in compliance with the terms and conditions of this Agreement.

Fees and Payment

1. License Fees. Licensee shall pay Licensor the license fees set forth in the Order Form (the “Fees”) in accordance with the Order Form and the terms of this Section 8.1. If the Term is renewed for any Renewal Term(s) pursuant to Section 15.2, Licensee shall pay the then-current standard license fees that Licensor charges for the Software during the applicable Renewal Term.
2. Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.
3. Payment.
   (a)  Licensee shall pay all Fees within thirty (30) days after the date of the invoice therefor. Licensee shall make all payments hereunder in US dollars by ACH or those major credit cards accepted by Licensor or other payment method subject to Licensor’s approval. Licensee shall make payments to: BuildWitt Media Group, LLC 1400 Adams Street Suite 202 Nashville, Tennessee 37208 or such other address or account as Licensor may specify in writing from time to time. 
   
   (b)  Licensee’s payment method on file with Licensor will be automatically charged as of each Renewal Term based on the terms of Licensee’s subscription. Licensor may increase Fees for any Renewal Term by providing notice to Licensee at least fourteen (14) days prior to or upon the commencement of such Renewal Term. In the event Licensee rejects the increased Fees, this Agreement shall terminate. 
   
   (c)  Licensee warrants that the payment information entered in conjunction with the payment of the Fees and other expenses under this Agreement are true and correct (e.g., valid credit card information).  Further, Licensee understands and agrees that any declined payment (e.g., dishonored credit card) may lead to additional fees and to the suspension or termination of Licensee’s access to and use of the Software.  Licensee also understands and agrees that it is solely responsible to ensure prompt payment of all Fees and expenses owed in connection with its use of the Software and that Licensor is under no obligation to retain, preserve or otherwise maintain Licensee’s information, account, or services associated with Licensee’s account if its account is in default.
   
   
4. Late Payment. If Licensee fails to make any payment when due then, in addition to all other remedies that may be available to Licensor:
   (a)   Licensor may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
   
   (b)   Licensee shall reimburse Licensor for all costs incurred by Licensor in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees; and
   
   (c)   if such failure continues for ten (10) days following written notice thereof, Licensor may: (i) disable Licensee’s use of the Software (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke its grant of a license hereunder; and/or (iii) terminate this Agreement under Section 15.3(a) or Section 15.3(b), as applicable.
5. No Deductions or Setoffs. All amounts payable to Licensor under this Agreement shall be paid by Licensee to Licensor in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
6.  Refund Policy. All fees paid to Licensor or otherwise associated with Licensee’s access to and use of the Software are non-refundable.

Audits

1. Audit Procedure. Licensor or its Representatives (including its accountants and auditors) may, in Licensor’s sole discretion, inspect and audit Licensee’s use of the Software under this Agreement at any time during the Term and for two (2) years following the termination or earlier expiration of this Agreement. Licensee shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Licensor with respect to such audit. Licensor shall only examine information directly related to Licensee’s use of the Software. 
2. Cost and Results of Audit. If the audit determines that Licensee’s use of the Software exceeded the usage permitted by this Agreement by more than two percent (2%), Licensee shall pay to Licensor all amounts due for such excess use of the Software, plus interest on such amounts, as calculated pursuant to Section 8.4(a). If the audit determines that such excess use equals or exceeds two percent (2%) of Licensee’s permitted level of use, Licensee shall also pay to Licensor all costs incurred by Licensor in conducting the audit. Licensee shall make all payments required under this Section 9.2 within ten (10) days of the date of written notification of the audit results.

Confidentiality

1. Confidential Information. In connection with this Agreement, each Party (the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (the “Receiving Party”). Subject to Section 10.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers personal, confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as “confidential,” and including personal data of Disclosing Party’s employees. Without limiting the foregoing: (a) the Software and Documentation are the Confidential Information of Licensor; and (b) the terms of this Agreement are the Confidential Information of Licensor.
2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
   

   (a)   not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

   (b)   except as may be permitted under the terms and conditions of Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10;

   (c)   safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;

   (d)  promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and

   (e)   ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 10.

   ​Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 10 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

Intellectual Property Rights.

1. Intellectual Property Ownership. Licensee acknowledges and agrees that: 
   

   (a)   the Software and Documentation are licensed, not sold, to Licensee by Licensor under this Agreement and that Licensee does not have under or in connection with this Agreement any ownership interest in the Software or Documentation, or in any related Intellectual Property Rights;

   (b)   Licensor and its third-party licensors are the sole and exclusive owners of all right, title, and interest in and to the Software and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Open Source Components and the limited license granted to Licensee under this Agreement; and

   (c)   Licensee hereby unconditionally and irrevocably assigns to Licensor, its entire right, title, and interest in and to any Intellectual Property Rights that Licensee may now or hereafter have in or relating to the Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

2. Licensee Cooperation and Notice of Infringement. Licensee shall, during the Term:
   

   (a)   safeguard the Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;

   (b)   at Licensor’s expense, take all such steps as Licensor may reasonably require to assist Licensor in maintaining the validity, enforceability and Licensor’s ownership of the Intellectual Property Rights in the Software and Documentation; 

   (c)   promptly notify Licensor in writing if Licensee becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Licensor’s Intellectual Property Rights in or relating to the Software or Documentation; or (ii) any claim that the Software or Documentation, including any production, use, marketing, sale or other disposition of the Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and

   (d)   fully cooperate with and assist Licensor in all reasonable ways in the conduct of any Action by Licensor to prevent or abate any actual or threatened infringement, misappropriation or violation of Licensor’s rights in, and to attempt to resolve any Actions relating to, the Software or Documentation, including having Licensee’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.

3. No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software or Documentation.

Representations and Warranties

1. Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that:
   

   (a)   it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

   (b)   it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement;

   (c)   entering into this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and

   (d)   as of the Effective Date, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

2. Licensee Material Representation and Warranty. In the event Licensee implements or provides any content, data, writings, communications, diagrams, methods, processes, images, or other forms of materials or resources to Licensor to be included in the Software, Licensee represents and warrants to Licensor that Licensee has title or right, and all necessary permissions or licenses, to use all such provided content, and that such provided content does not violate or infringe any applicable laws or any Intellectual Property Rights of any third parties, and notwithstanding any other term of this Agreement, Licensee shall indemnify Licensor for any third-party claims, actions, or damages that arise from a breach of this representation and warranty.
3. DISCLAIMER OF WARRANTIES. The Training Content has been made available through the Software for informational and educational purposes only. The access and use of the Software, including any downloading or uploading of content from or to the Software, is done so at Licensee’s and the Authorized Users’ own discretion and risk except to the extent of any damage directly caused by the Software. In other words, Licensee and the Authorized Users are solely responsible for any damage done to any computer, electronic device, or other property used to access or use the Software, including but not limited to the loss of money through corruption of data, except to the extent of any damage directly caused by the Software. Licensor does not make any representation or warranties with respect to the accuracy, applicability, fitness, or completeness of the Training Content or the Software. The Training Content is not intended to be a substitute for traditional field training and proper supervision and management by Licensee of its employees. Licensee also acknowledges that it uses the Training Content at its sole risk.  Licensee maintains the sole obligation to ensure compliance with all applicable laws to Licensee.  Licensee hereby covenants not to sue and hereby waives all claims to the maximum extent of the law against Licensor related to Licensee’s non-compliance with applicable law, regardless if the Training Content is utilized. Training Content may be removed, amended, supplemented, and/or replaced without notice. Licensee agrees and acknowledges that it has not entered into this Agreement under any representation or reliance that any particular Training Content will or shall remain available. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH, ALL SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS”.  LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS. LICENSOR DOES NOT WARRANTY OR GUARANTEE ANY OF THE AUTHORIZED USERS’ COMPLIANCE WITH LAW.  LICENSOR IS NOT RESPONSIBLE FOR THIRD PARTIES’ UNLAWFUL ACTIVITIES REGARDLESS OF WHETHER THE SOFTWARE IS INVOLVED.

Indemnification

1. Licensor Indemnification. Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all Losses incurred by Licensee directly resulting from any Action by a third party arising from the gross negligence or willful misconduct of Licensor or those for whom Licensor is responsible, or asserting that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets. This Section 13.1 does not apply to the extent that the alleged infringement arises from:
   

   (a)   Open Source Components or other Third-Party Materials;

   (b)   combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by Licensor or specified for Licensee’s use in the Documentation;

   (c)   modification of the Software other than: (i) by Licensor in connection with this Agreement; or (ii) with Licensor’s express written authorization and in strict accordance with Licensor’s written directions and specifications;

   (d)   use of any version of the Software other than the most current version or failure to timely implement any Maintenance Release, modification, update, or replacement of the Software made available to Licensee by Licensor;

   (e)  use of the Software after Licensor’s notice to Licensee of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights; 

   (f)   negligence, abuse, misapplication, or misuse of the Software or Documentation by or on behalf of Licensee, Licensee’s Representatives;

   (g)   use of the Software or Documentation by or on behalf of Licensee that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Licensor’s instructions;

   (h)   events or circumstances outside of Licensor’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or

   (i)   Third-Party Claims or Losses for which Licensee is obligated to indemnify Licensor pursuant to Section 13.2.

2. Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, subcontractors, successors and permitted assigns (each, a “Licensor Indemnitee”) from and against any and all Losses incurred by the Licensor Indemnitee resulting from any Action by a third party asserting:
   

   (a)   that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
   
            (i)   use or combination of the Software by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in this Agreement and the Documentation, but only to the extent caused by Licensee’s use of the hardware, software, system, network, service, or other matter not provided by Licensor; and
   
           (ii)   information, materials, or technology directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated, or used with, as part of, or in connection with the Software or Documentation;

   (b)   relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement;

   (c)   relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the Software or Documentation or otherwise in connection with this Agreement; or

   (d)   relating to use of the Software or Documentation by or on behalf of Licensee or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Licensor’s instructions.
   
   Further, if a Licensor Indemnitee receives a subpoena based on Licensee’s or an Authorized User’s use of the Software, Licensee hereby agrees to indemnify the Licensor Indemnitee for all costs and expenses, including reasonable attorneys’ fees incurred related to responding to the subpoena.  The indemnification obligations in this Section 13.2 are in addition to any other rights or remedies Licensor may have in law or equity.

3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Action and shall employ counsel of Indemnitor’s choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
   
   
4. Mitigation. If the Software, or any part of the Software, is, or in Licensor’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Licensee’s use of the Software is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense:
   

   (a)  obtain the right for Licensee to continue to use the Software materially as contemplated by this Agreement;

   (b)  modify or replace the Software, in whole or in part, to seek to make the Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Software under this Agreement; or

   (c)  if none of the remedies set forth in the above Section 13.4(a) or Section 13.4(b) is reasonably available to Licensor, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Licensee, in which event:
   
           (i)   Licensee shall cease all use of the Software and Documentation immediately on receipt of Licensee’s notice; and 
   
           (ii)   provided that Licensee fully complies with its post-termination obligations set forth in Section 15.4, Licensor shall promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.

5. Sole Remedy. THIS SECTION 13 SETS FORTH THE RESPECTIVE PARTIES’ SOLE REMEDIES, LIABILITIES AND OBLIGATIONS FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

Limitations of Liability

1. EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY SOFTWARE OR OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY (EXCEPT THAT NOTHING IN THIS PROVISION SHALL PROHIBIT ANY CLAIM AGAINST LICENSOR UP TO THE EXTENT OF LICENSOR’S INSURANCE COVERAGE FOR SUCH LOSSES OR DAMAGES), (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. CAP ON MONETARY LIABILITY. EXCEPT WITH RESPECT TO LICENSOR’S INDEMNIFICATION OBLIGATIONS AND EXCEPT FOR LICENSOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL THE AGGREGATE LIABILITY OF LICENSOR ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Term and Termination

1. Initial Term. The initial term of this Agreement commences as of the Effective Date and continues in effect for the duration set forth in the Order Form unless terminated earlier pursuant to any of the Agreement’s express provisions (the “Initial Term”).
2. Renewal Term. This Agreement will automatically renew for additional successive periods as set forth in the Order Form unless earlier terminated pursuant to any of the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
3. Termination. This Agreement may be terminated at any time:
   

   (a)   by Licensor, effective on written notice to Licensee, if Licensee fails to pay any amount when due under this Agreement, where such failure continues more than five (5) days after Licensor’s delivery of written notice thereof (“Payment Failure”);

   (b)   by Licensor, immediately on written notice to Licensee if any three (3) or more Payment Failures occur in any twelve (12) month period;

   (c)   by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; and

   (d)   by Licensor, effective immediately, if the Licensee: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

4. Effect of Termination or Expiration.

   (a)   On the expiration or earlier termination of this Agreement: 
   
          (i)  all rights, licenses and authorizations granted to licensee hereunder will immediately terminate and Licensee will (A) immediately cease all use of and other activities with respect to the Software and Documentation; (B) within five (5) days deliver to Licensor, or at Licensor’s written request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, the Software, the Documentation and the Licensor’s Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (C) certify to Licensor in a signed written instrument that it has complied with the requirements of this Section 15.4; and

   (b)   all amounts payable by Licensee to Licensor of any kind are immediately payable and due no later than five (5) days after the effective date of the expiration or five (5) days after Licensor’s termination of this Agreement.

5. Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 15.5 (Surviving Terms), Section 1 (Applicability), Section 8 (Fees and Payment), Section 9 (Audits), Section 11 (Intellectual Property Rights), Section 13 (Indemnification), Section 14 (Limitations of Liability), and Section 16 (Miscellaneous).

Miscellaneous

1. Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
2. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
3. Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld, provided, however, that Licensor may, without Licensee’s consent, include Licensee’s name and other indicia in its lists of Licensor’s current or former customers of Licensor in promotional and marketing materials.
4. Notices. Any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 16.4):
   
   

   ​If to Licensor:

   ​

   1400 Adams Street ​ Suite 202 ​ Nashville, Tennessee 37208 ​ Email: info@buildwitt.com

   ​​If to Licensee:

   ​

   To the contact information stated on the Order Form.

   
   
   Notices sent in accordance with this Section 16.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next Business Day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
5. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
7. Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent. No assignment, delegation, or transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16.7 is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns. Any attempt by Licensee’s creditors or another third party to obtain an interest in Licensee’s rights under this Agreement is voidable at Licensor’s option.
8. Export Regulation. The Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Licensee will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Licensee will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
9. Force Majeure. In no event will Licensor be liable or responsible to Licensee, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, including the unavailability of the Software, when and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control (a “Force Majeure Event”), including: (i) acts of God; (ii) flood, fire, earthquake, epidemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more. In the event of any failure or delay caused by a Force Majeure Event, Licensor will give prompt written notice to Licensee stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11. Amendment and Modification; Waiver. Licensee acknowledges and agrees that these Terms may change, with prior notice to Licensee, and that Licensee accepts any such modifications by its continued use of the Software following receipt of such notice.  Any such revision or change will be binding upon Licensee after ten (10) days of posting of the updated Terms on Licensor’s website, or e-mail or other written notification to Licensee, whichever comes first. If Licensee disagrees with any modification to the Terms, it must notify Licensor in writing within the ten (10) day time period described above and immediately discontinue use of any Software. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Tennessee.
14. Arbitration. Except for equitable relief, Licensee agrees that any claim, dispute, action or litigation based hereon, relating to or arising out of this Agreement, or related to the Software or Documentation provided by Licensor to Licensee shall be brought and maintained exclusively via arbitration (except for injunctive relief). Any Party seeking to pursue an action to arbitrate shall give written notice to the other Party of such election that summarizes in sufficient detail the basis of the dispute at least ten (10) days before bringing an arbitration action. The dispute shall be submitted for arbitration with JAMS in accordance with its Comprehensive Arbitration Rules and Procedures. Such arbitration shall be conducted, unless otherwise agreed by the Parties, by a single arbitrator, who shall be a former judge, in a location that is mutually agreeable to the Parties (or, if no agreement can be reached, then a location in Davidson County, Tennessee (the “Permitted Forum”)). The award of the arbitrator may be confirmed or enforced in any court of competent jurisdiction. The prevailing Party in any arbitration shall be entitled to recover all costs incurred by such Party in connection with the proceeding, including reasonable attorneys’ fees.  Licensee expressly waives any objection of venue and jurisdiction, including but not limited to arguments that such litigation has been brought in an inconvenient forum.
15. Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under Section 3.4 (Security Measures), Section 8 (Fees and Payment), Section 11 (Intellectual Property Rights), or Section 13 (Indemnification) of this Agreement would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Licensor will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court with jurisdiction in the Permitted Forum, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
16. Time Limitations For Action. Unless prohibited by law, Licensee agrees that any cause of action arising out of or related to the Software and/or any services provided by Licensor must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred and shall be deemed released and waived by Licensee.
17. Prior Action Before Formal Claim. Licensee agrees that as a material provision of this Agreement, Licensee will provide Licensor detailed written notice of any claimed deficiencies and at least thirty (30) days to cure such alleged deficiency in the Software or Licensor’s provision of service prior to bringing any formal legal claim against Licensor.  Licensee further agrees that this provision is reasonable and helps aid Licensor in providing high quality services and complying with applicable law.  Should Licensee violate this provision and fail to give Licensor such notice, it shall constitute a material breach of this Agreement and entitle Licensor to all of its reasonable attorneys’ fees, court costs, and any related expenses associated with enforcing its right to the thirty (30) day cure period.  This provision specifically applies to any and all claims under local, state, federal law or applicable international law, and specifically includes claims related to the American with Disabilities Act.
18. Waiver of Jury Trial. EACH OF THE PARTIES HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, OR RELATED TO SOFTWARE.
19. Waiver of Class Action. EACH OF THE PARTIES WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS ACTION, AND INSTEAD, AGREES THAT ANY AND ALL DISPUTES SHALL BE RESOLVED ON AN INDIVIDUAL BASIS USING THE DISPUTE RESOLUTION PROVISIONS IN THESE TERMS.
20. Attorneys’ Fees. If Licensor prevails in any action, suit, or proceeding arising from or related to this Agreement, Licensor shall be entitled to recover its reasonable attorneys' fees in connection therewith in addition to court costs and other fees and disbursement incurred in such action, suit, or proceeding.
21. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of any part of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of such part of this Agreement.