In your business, you either currently, and/or in the future, plan to own and operate one or more websites. We are engaged in the business of developing, improving, and maintaining websites. We are also engaged in the business of “optimizing” websites, i.e. taking steps to increase the general and/or targeted traffic to such websites by such techniques as modifying and adjusting the text, keywords, metatags, titles, content and/or layout of the websites, adding links from other websites and blogs, marketing and other methods.
2. Services and Pricing.
2.1 Services. Subject to any additional services that we agree to provide in writing, we agree to provide: (a) website hosting; (b) mobile-first design; (c) editable content; (d) an integration with the Buildertrend software by allowing support for the Buildertrend contact form, login box, and surveys; (e) social media integration; (f) customizable search engine optimization; and (g) on-going service and support. The services and deliverables to be provided under this Website Agreement are sometimes referred to herein as a “Project.”
2.2 Charges. Unless otherwise provided in writing, we will charge you for the Services one hundred and ninety-nine dollars ($199) per month from the date of initial sign up to the date of Cancellation and Termination, as described below.
2.3 Maintenance. Buildertrend will provide one free hour of maintenance a month. At any point, if additional maintenance or website improvements are required or requested, we will charge you ninety-nine dollars ($99) per hour (the “Maintenance Rate”) to complete.
3. Customer Content.
You will provide content (the “Customer Content”) as may be requested for the development, hosting, and optimization of your website which includes, but is not limited to, logos, photographs, graphics, audio and/or video for the website.
All Services will be provided in accordance with the schedule agreed between you and Buildertrend. However, this schedule is subject to your providing the Customer Content as required and making the domains available to us, responding to our calls promptly, and otherwise cooperating fully.
If you wish to change the requirements for a Project, there may be additional costs, charges, or fees associated with Services beyond those initially agreed to.
6. Payments, Refunds, and Subscription Charges.
6.1 Buildertrend may charge to your credit card or other payment mechanism selected by you and approved by Buildertrend (“Your Account”) all amounts due and owing for the Services or any other fee or charge associated with your website in United States Dollars (USD). You agree that in the event Buildertrend is unable to collect the fees owed to Buildertrend for the Services through Your Account, Buildertrend may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by Buildertrend in connection with such collection activity, including collection fees, court costs, and attorneys’ fees.
6.2 No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving your removal from our website Services.
6.3 All prices are subject to change upon such notice. Such notice may be provided by an e-mail message to you.
6.4 You agree to pay any and all sales and/or use taxes and any and all tariffs and/or duties applicable or related to our providing all services and software to you and licensing any software and your payments therefor.
7. Cancellation and Termination.
7.1 You are solely responsible for canceling subscriptions. You may cancel your subscription by providing express written request to your assigned Buildertrend Customer Success Manager or website Services agent, or sending an email to firstname.lastname@example.org. Cancellations shall not be accepted by any other means.
7.2 Buildertrend in its sole discretion has the right to suspend or discontinue providing Services to you without notice for actions that are (a) in material violation of this Website Agreement, (b) create a Security Emergency, and (c) upon information or belief that a you are violating the law, or Buildertrend becomes aware that you are under investigation by a federal or state law enforcement agency.
7.3 If (i) you use your website to materially violate this Agreement in a way that does not create a Security Emergency; (ii) Buildertrend provides you with commercially reasonable notice of this violation; (iii) Buildertrend uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and (iv) despite the foregoing, the violation is not resolved to Buildertrend’s reasonable satisfaction within thirty (30) days of such notice, then Buildertrend reserves the right to suspend or terminate the relationship and any Services then performed.
Each party will exert commercially reasonable efforts to make each Project successful. You understand that your delay in providing feedback and/or Customer Content may delay completion of the Project.
9. Administration, Access, and Repairs.
9.1 Coordinator Contact. Each party will identify one (1) person who will be the primary contact person and project coordinator for that party for any particular Project.
9.2 Administrative Representative. Upon request, Buildertrend may provide administrative access to up to one (1) representative. Only users who have been granted administrative access by Buildertrend can access the proprietary details of the website development. At Buildertrend’s discretion, we may grant administrative access to additional users.
9.3 No Alterations. If granted administrative access, you may not alter that access or share that access login with anyone else, including third parties. Users with administrative access also may not add or delete accounts.
9.4 Repairs. If a user with administrative access or their team breaks the website, for example, by attempting to implement a custom code or uploading a plug-in, Buildertrend is not liable for fixing the website. You may request that Buildertrend repair and return the website to a working condition and such repairs will be billed at the Maintenance Rate to your card on file.
10. Proprietary Rights.
10.1 We develop libraries of code that we use for various projects. We own the proprietary rights in, and will continue to own the proprietary rights in, the code we have developed previously and use in any Project and in any code we develop in connection with producing any Project.
10.2 We may also use graphics we have previously developed in which we own the proprietary rights. We will continue to own the proprietary rights in those graphics.
10.3 We will assign to you the copyrights in the graphics we develop for you at an additional cost that we agree to in writing.
10.4. You cannot copy or migrate the Buildertrend created and developed website to another hosting provider without our prior written consent. If you choose to move to a new host with our prior written consent, Buildertrend is not responsible for the website transfer and migration process, website development, or trouble shooting.
10.5 You will own the proprietary rights in all of the Customer Content that you provide to us.
10.6 You grant to us and our successors a license to use the graphics we develop and your Customer Content for promotional and demonstration purposes only.
11. Limited Warranties
11.1 We warrant that all services will be provided in a professional manner by qualified personnel. For website development provided on a subscription basis, we warrant that the website, as developed, will conform to the applicable requirements. It is understood if there are two or more ways to develop a website that will meet applicable requirements, we have satisfied our obligations hereunder if we developed the software in one of those ways. If this warranty applies, we will fix any defects (nonconformity) reported to us in writing within sixty (60) days after we complete and deliver the new or modified website to you.
11.2 We warrant that use of any website elements as intended that we deliver to you will not infringe any copyrights or trade secret rights of any third party. We further warrant that use of such elements as intended will not infringe any patent rights except to the extent that the requirements you give us infringe patent rights independently of our design and development of the website. If any portion of the website that we have delivered becomes, or, in our opinion is likely to become, the subject of a claim of infringement, then we may, at our option and expense:
(a) Procure the right for you to continue to use the website as provided in this Website Agreement; or
(b) Replace or modify the affected portion of the website with similar features and functionality so that it becomes non-infringing.
11.3: Notwithstanding the rights of 11.2, Buildertrend is not liable for any copyright or patent right infringements for Customer Content shared with us or that you post on the website.
11.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN AND IN ANY APPLICABLE STATEMENT OF WORK, WE MAKE NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER, AND EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES SET FORTH IN THIS LIMITED WARRANTY ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIMS RELATING TO THE SOFTWARE.
12. Limitation of Liability.
WE SHALL NOT, IN ANY EVENT, BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHER SIMILAR DAMAGES, EVEN IF WE, OR ANY OF OUR DISTRIBUTORS OR AGENTS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES IN EXCESS OF THE SUM YOU HAVE PAID TO US FOR THE SOFTWARE IN THE TWELVE (12) PROCEEDING MONTHS TO WHICH YOUR CLAIM IS RELATED.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Website Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
14. Force Majeure.
Neither party shall be held liable for any delay or failure in performance of any part of this Website Agreement, other than payment of money owed, from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers.
15. Relationship of Parties.
This Website Agreement will not be construed as creating an employer/employee, agency, partnership, or joint venture relationship between you (or any of your employees) and us (or any of our employees). Neither party shall have the authority to make agreements on behalf of the other party. Each party shall have the obligation to supervise, manage, contract, direct, procure, perform or cause to be performed, all work to be performed by such party under this Website Agreement.
Buildertrend reserves the right to amend this Website Agreement. In the event of material changes to the Website Agreement, Buildertrend will notify you, by reasonable means of these changes prior to their enactment. Your continued use of the Services after reasonable notice will be considered acceptance of any new terms.
The unenforceability or invalidity of any term provision, section or subsection of this Website Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Website Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.
18. Governing Law and Venue.
This Website Agreement and your relationship with Buildertrend shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws of the State of Nebraska and shall be considered to have been made and accepted in the State of Nebraska, USA, without regard to any conflict of law provisions. All disputes under this Website Agreement will be resolved by a court of the Douglas County District Court, Douglas County, Nebraska, or the federal district court for the District of Nebraska located in Omaha, Nebraska, USA, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and legal fees.
19. Entire Agreement.
This Website Agreement constitutes the entire agreement between you and Buildertrend and governs your use of the Services, superseding any prior agreements between you and Buildertrend (including, but not limited to, any prior versions of this agreement).