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Website Terms & Conditions

Introduction

This page contains the BuildingReports User Agreement for three user types:

Please scroll to the terms and conditions applicable to your user type for more information.

Authority Having Jurisdiction User Agreement

This BuildingReports Authority Having Jurisdiction User Agreement (“Agreement”) is by and between BuildingReports.com, Inc., a Georgia company with a principal place of business at 1325 Satellite Boulevard, Suite 1607, Suwanee, Georgia 30024 (referred to herein as "BuildingReports") with an email address of "compliancecenter@buildingreports.com" for official notices, and the Authority Having Jurisdiction User, name and address details as listed on the Company Information page of the Authority Having Jurisdiction's ComplianceCenter portal (referred to herein as "AHJ").
WHEREAS, AHJ is a public official (i.e. authority having jurisdiction) responsible for enforcing building fire and safety codes in the jurisdiction specified above;
WHEREAS, AHJ requires access to periodic fire and safety inspections that are facilitated by BuildingReports’ services, proprietary online portal, software, and databases; and
WHEREAS, BuildingReports desires to safeguard the data of its Members and Non-Member Users that is stored on its servers;
NOW THEREFORE, for good and valuable consideration, and for the mutual promises contained herein, the parties hereby agree as follows:
1. Services; ComplianceCenter.
a. BuildingReports shall provide AHJ with the Services set forth in Exhibit A in accordance with the standards of workmanship and professionalism prevailing in the industry. The Services shall be rendered at the location(s) set forth on the AHJ Information page of AHJ’s ComplianceCenter portal.
b. Subject to the terms and conditions set forth herein, BuildingReports grants to AHJ a non-exclusive, non-transferable, limited license to access and use BuildingReports’ proprietary online portal, software, database, and associated documentation (collectively referred to herein as “ComplianceCenter”) at the location specified on the AHJ Information page of AHJ’s ComplianceCenter portal.
c. BuildingReports shall respond to email support requests within four business hours of receipt during normal work days (Mondays through Fridays excluding Federal holidays).
d. BuildingReports shall provide live call support available during normal business hours (i.e., 8:00am through 5:00pm Eastern Standard Time Mondays through Fridays excluding Federal holidays) at rates set forth in Exhibit A.
2. AHJ Responsibilities. AHJ shall:
a. Designate by name the persons within AHJ’s organization other than AHJ who have a need to access BuildingReports’ website (“Authorized Users”). AHJ shall designate an Authorized User by registering each Authorized User with BuildingReports using BuildingReports’ online portal, after which each Authorized User will be assigned an account and password. Each Authorized User must be under the authority of AHJ, and it is AHJ’s responsibility to advise BuildingReports if an Authorized User has left his employ or should otherwise have its user account discontinued.
b. Ensure that all use of the Services, BuildingReports’ website, the documentation, or BuildingReports’ proprietary software (collectively, “ComplianceCenter”) are used only by AHJ or Authorized Users.
c. Maintain the hardware, platforms, software and other systems that will communicate with, or be connected to, the ComplianceCenter and all its component parts.
d. Use ComplianceCenter exclusively on the approved hardware and software, which AHJ shall provide at its own expense, as promulgated from time to time by BuildingReports. Additionally, AHJ shall provide all personnel and facilities, all hardware, software, communications equipment, telephone and communication lines, power, telephone service and other utilities as may be necessary (in BuildingReports sole opinion) for AHJ to receive the Services and utilize ComplianceCenter.
e. Cooperate with BuildingReports in the performance of its Services, including promptly responding to any requests by BuildingReports for information. AHJ shall perform its duties and obligations hereunder in a professional manner in accordance with applicable laws.
f. Use the BuildingReports only in compliance with all laws, rules, regulations and ordinances from every governmental authority with jurisdiction over AHJ.
g. Comply with BuildingReports’ information technology and security policies as defined in this document.
3. Payments.
a. AHJ shall pay BuildingReports the agreed-upon amounts (“Fees”), for the Services BuildingReports performs, which are based on AHJ’s usage of the Services, as set forth in an invoice provided to AHJ on a periodic basis. All invoices are payable within fifteen (15) days after receipt. In the event the rate structure is changed, whether due to AHJ’s increased usage or otherwise, as reflected on a particular invoice, AHJ may elect to terminate this Agreement without penalty, such termination to be effective upon receipt of written notice by BuildingReports; provided that AHJ is responsible to pay any amounts incurred up through the date of such termination.
b. AHJ is responsible for all sales, use, and all other taxes, assessments, and duties which are levied by any governmental authority against BuildingReports in connection with BuildingReports’ delivery of the Services, but not including BuildingReports’ income tax. In the event such amounts are assessed against BuildingReports, BuildingReports will advise AHJ and provide AHJ with documentation of the tax due. AHJ will remit the total amount due to BuildingReports within ten days of receiving such documentation.
c. Any payment that AHJ fails to make to BuildingReports within the time specified will bear interest at a monthly rate of 1.5% or the maximum interest rate permitted under applicable law, whichever is less. The interest shall be levied from the date on which the payment was due and shall continue until full payment is made.
d. If AHJ fails to pay any amount due BuildingReports for more than thirty (30) days from the date it was due, then Building Reports shall have the right to cease providing Services under this Agreement until AHJ makes all overdue payments, together with any interest due. BuildingReports shall also have the right to end this Agreement, though doing so will not affect the amounts due from AHJ through the date the services end. BuildingReports shall have the right to exercise either or both remedies in this paragraph immediately upon notice to the AHJ.
e. If AHJ’s use of the Services is suspended or ended at any time, and thereafter, AHJ fulfills all requirements specified by BuildingReports for reinstatement, AHJ shall pay a Reconnect Fee, which BuildingReports shall provide upon request.
4.Intellectual Property.
a. AHJ acknowledges and agrees that BuildingReports is the sole and exclusive owner of any patents, trademarks, copyrights, and trade secrets embodied in ComplianceCenter (collectively, the “Intellectual Property”), as well as all other property rights and interests inherent in or associated with ComplianceCenter.
b. Any tangible copies of the Intellectual Property in the possession of AHJ shall remain the exclusive property of BuildingReports and may not be disclosed, distributed, or furnished by AHJ or to any other person or entity unless authorized by BuildingReports in writing.
c. All Intellectual Property, including all backup, archival or other copies in the possession of AHJ (including its affiliates and Authorized Users) shall be destroyed as BuildingReports shall specify from time to time, and in any case within 24 hours of the termination of this Agreement.
d. AHJ acknowledges and agrees that: (i) the rights granted under this Agreement are non-exclusive, and BuildingReports may grant the same or similar rights and licenses to others; (ii) that this Agreement does not grant AHJ any license or rights in or to any trademark, service mark, or logo of BuildingReports; and (iii) BuildingReports has the right to disclose that AHJ is a participant in, or a user of, ComplianceCenter in its promotional and advertising material.
e. AHJ covenants that it shall not, either directly or indirectly on its own or on others’ behalf, modify, prepare derivative works of, reverse engineer, decompile, or disassemble each and every component of ComplianceCenter.
f. AHJ shall not (and shall not attempt to) use, sell, lease, license, sublicense, give, share, communicate, distribute, or otherwise transfer the Intellectual Property, including private label branding of the Services, to any person or entity other than as expressly permitted in this Agreement.
g. AHJ may not publicize or use BuildingReports®, ComplanceCenter™ or any other trademark or service mark of BuildingReports, without the prior express written consent of BuildingReports, except in accordance with the Services, e.g. on printed AHJ reports which are required to display such marks.
5. Confidential Information and Trade Secrets; Data Ownership; Use of Member and Property Owner Data.
a. “Confidential Information” is defined to include all technical or non-technical data, information, and material, regardless of format, medium, or source, regarding the facilities, systems, hardware, software, operation, business, financial affairs, products, services, customers, independent contractors and employees of BuildingReports, and the users of ComplianceCenter, i.e. Members, Non-Member Users, and AHJs which AHJ may become aware of as a result of its use of ComplianceCenter, or as part of the Services. Confidential Information shall include building fire and safety inspection data which is stored on BuildingReports’ servers, notwithstanding the fact that such data may be otherwise publicly-available.
b. “Trade Secrets” are defined to include the following:
i. the identity and contact information of all Members and Non-Member Users;
ii. the terms, details, and specifications of any Services to be performed by us;
iii. the terms, details and of all agreements (written and oral), work orders, proposals, quotes, statements of work, and other documents of all types between BuildingReports and AHJ, including the terms of this Agreement;
iv. all source code, object code, programming code, macros, object libraries, technical specifications, files of all types (including, though not limited to, HTML and Java files), graphics, animation, computer software, script, digital imagery, illustrations, photography, video, sound effects, report formats, application data, finalized print materials, finalized applications, text, software, materials, documentation, methods, systems, processes, packaging, works, and other tangible items describing, illustrating, explaining, incorporating, or using any of these things, including all of BuildingReports’ proprietary software system which allows an AHJ to electronically perform data collection and record the results, specifically including software for the iOS, Android OS, PalmOS, Windows Mobile, Mac OSX, and Windows platforms which allows the collection of information and the exchange of data between the handheld device and the BuildingReports web server; and
v. any other information, without regard to form or marking, including technical or nontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, or product plans which is not commonly known by or available to the public and which information derives economic value, actual or potential, from not being generally known to , and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of reasonable efforts to maintain secrecy.
c. AHJ shall not use, duplicate, or reproduce any Confidential Information or Trade Secrets except in its official capacity; nor shall it publish, divulge, distribute, or disclose any Confidential Information or Trade Secrets to any other person or entity except in its official capacity in accordance with applicable laws and regulations, and then only to the minimum extent necessary to comply with such laws and regulations. AHJ shall safeguard the Confidential Information and Trade Secrets to prevent inadvertent or unauthorized disclosure; in no case shall AHJ use less than reasonable means to protect the Confidential Information and Trade Secrets. AHJ hereby acknowledges his confidentiality obligations under both the terms of this Agreement and his ethical obligations as a public official. AHJ shall ensure that any personnel working under its authority are aware of their obligations regarding the Confidential Information and Trade Secrets, and acknowledges that it shall be liable for any breach of these obligations by such personnel.
d. AHJ hereby grants to BuildingReports a non-exclusive, worldwide, perpetual, fully paid-up and royalty-free license to any building fire and safety inspection data uploaded to BuildingReports servers using ComplianceCenter. AHJ acknowledges and agrees that any such data shall be retained by BuildingReports for five (5) years, or for such period otherwise required by law, whichever is greater.
e. AHJ hereby grants to BuildingReports non-exclusive, worldwide, perpetual, fully-paid up and royalty-free license to use all data (including reports) generated by the AHJ for BuildingReports’ own advertising and promotional purposes, provided that BuildingReports anonymizes and aggregates such data with other AHJ User data. BuildingReports reserves the right to disclose data (including reports) generated by the AHJ to the property owners or lessees for whom AHJ collects data.
f. Either BuildingReports, or any Member or NMU (service company who is not a Member of BuildingReports) whose data is disclosed as a result of a breach of AHJ’s confidentiality obligations, shall have the right, but not the obligation, to enforce the confidentiality provisions of this Agreement against AHJ.
g. AHJ’s confidentiality obligations set forth in this section shall survive termination of this agreement for (i) five (5) years or the maximum time allowable by law, whichever is less, for Confidential Information, and (ii) indefinitely, for information categorized as Trade Secrets.
h. AHJ hereby acknowledges and agrees that, in the event of its breach of the provisions set forth in this Section, BuildingReports, or any Member or NMU whose information is disclosed as a result of such a breach, may in addition to any other remedies available at law, seek equitable relief against the breaching party, including seeking an injunction to prevent any further breach and remedy an existing breach.
6. Subcontracting. BuildingReports may, in its sole discretion, assign or subcontract some or all of the Services to others; provided that BuildingReports shall be fully responsible for the performance of services by that subcontractor or assignee.7.Term and Termination. This Agreement shall commence on the date upon its execution by both parties (“Effective Date”) and shall remain in effect until terminated by:
a. Either party rendering at least ninety (90) days’ prior written notice to the other party;
b. Either party upon the other’s material breach of a provision of this Agreement; provided that, the breaching party shall five (5) days from receipt of written notice from the non-breaching party to cure such breach. If the breach is not cured by midnight on the fifth day, then the non-breaching party can end this Agreement immediately.
c. Either party upon immediate notice to the other party, if that other party becomes (or is adjudged) insolvent, files for relief under Federal bankruptcy laws, has a petition filed against it in Federal court for bankruptcy relief and if the petition is not dismissed within 15 days of filing; or is adjudged bankrupt; or makes a general assignment for the benefit of its creditors; or becomes subject of any proceeding under any Federal or state statute or law for the relief of debtors which is not dismissed within 15 days of filing; or if a receiver, trustee or liquidator is appointed for that party;
d. BuildingReports, if AHJ fails to make any payment to BuildingReports within five (5) days of the date such payment is due; or AHJ employment as a public official ceases for any reason.
8. Effect of Termination. When this Agreement ends for whatever reason, AHJ shall: (i) promptly pay to BuildingReports any amounts then due pursuant to the terms of this Agreement, (ii) return to BuildingReports (at its expense) all copies of the Proprietary Software and Documentation in AHJ’s possession, and (iii) cease all use of ComplianceCenter. Notwithstanding any of the foregoing, termination of this Agreement by either Party shall not relieve AHJ of his obligations which accrued through the end date, which, along with the Confidentiality Provisions in Section 5, shall survive termination of this Agreement.
9. Warranty.
a. BuildingReports hereby represents and warrants that the Services will be performed in a workmanlike, professional, and commercially reasonable manner as judged by the standards of the industry. AHJ shall immediately notify BuildingReports in writing in the event that the Services fall below such standard, and after receiving such notice, BuildingReports will use commercially reasonable efforts to either address and correct such breach or arrange a work-around.
b. AHJ’s exclusive remedy for any breach of the warranties made in this this Agreement is the correction or replacement by BuildingReports of the Services or repair of the non-conforming component of ComplianceCenter, whichever is applicable.
c. Notwithstanding anything to the contrary set forth herein, BuildingReports shall have no obligation to provide maintenance or support services described herein if the performance failure of ComplianceCenter is in any way attributable to AHJ’s (or anyone working under AHJ’s authority): (i) deviating from the operating instructions; (ii) altering, changing, or otherwise modifying ComplianceCenter or Services in a manner not authorized in writing by BuildingReports; or if AHJ or anyone working under their authority is using ComplianceCenter or Services in conjunction with non-approved hardware or software.
10. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. OTHER THAN THOSE WARRANTIES EXPRESSLY SET FORTH IN SECTION 9 ABOVE, THE SERVICES AND COMPLIANCECENTER ARE BEING PROVIDED “AS IS” AND BUILDINGREPORTS DOES NOT MAKE ANY WARRANTIES TO AHJ OR ANY OTHER PERSON, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO COMPLIANCECENTER OR ANY SERVICES PROVIDED HEREUNDER. THE PROVISIONS IN SECTION 9 ARE AHJ’S SOLE REMEDY FOR BREACH OF THE WARRANTIES PROVIDED IN THIS AGREEMENT. BUILDINGREPORTS DOES NOT WARRANT THE ACCURACY, VERACITY, OR COMPLETENESS OF DATA HOSTED ON ITS SERVERS THAT IS PROVIDED BY A MEMBER, NON-MEMBER USER, OR AHJ.
IN NO EVENT SHALL BUILDINGREPORTS, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS, AGENTS, LICENSORS, SUBCONTRACTORS OR REPRESENTATIVES BE LIABLE FOR ANY LOSS OF DATA, OR OTHER DAMAGES RESULTING FROM ANY DELAY IN OR NON-DELIVERY OF ANY DATA TRANSMISSIONS. BUILDINGREPORTS SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES WHICH ARISE FROM THE USE, OR INABILITY TO USE, THE SERVICES OR ANY BREACH OF ANY PROMISE, REPRESENTATION OR WARRANTY, OR WHICH ARISE IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, BUILDINGREPORTS' LIABILITY TO AHJ SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY AHJ TO BUILDINGREPORTS IN THE 90 DAYS PRIOR THE DATE ON WHICH THE LIABILITY AROSE.
11. Indemnification. AHJ shall indemnify, defend, and hold BuildingReports (including its officers, directors, stockholders, employees, agents, and affiliates) harmless from any losses, liabilities, claims, or causes of action arising from AHJ’s breach of its confidentiality obligations. BuildingReports shall notify AHJ in writing of such loss, liability, claim, or cause of action as soon as reasonably practicable after becoming aware of it, and AHJ shall promptly acknowledge such notice by affirming its indemnity obligation in writing. In the event AHJ fails to render such acknowledgement within a reasonable period after being notified, or if AHJ otherwise fails to indemnify BuildingReports, BuildingReports may seek counsel of its own choosing and shall be entitled to recover reasonable attorney’s fees, expenses, and costs involved in defending against such losses, liabilities, claims, or causes of action.
12. Miscellaneous.
a. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, notwithstanding its conflicts of laws provisions.
b. Notices. Any notice under this Agreement may be delivered via electronic means (e.g. email), provided that such communication must be able to be acknowledged (e.g. via read receipt) by the addressee. In the event such acknowledgement is not received, notice shall be given in writing, delivered by hand or by certified or registered mail, postage prepaid, addressed as provided below (or to such other persons and addresses either Party may designate in writing). Notice can also be given by established nationwide delivery service (e.g., Federal Express, UPS). A notice shall be deemed given three days from the date of delivery or the first attempted delivery (whichever occurs first). All notices to a Party under this Agreement will be sent to the electronic or physical addresses specified at the beginning of this Agreement, as amended from time to time by giving written notice to the other party.
c. Authority. Each party hereby represents and warrants to the other that it has all consents, permits, licenses and approvals necessary for it to enter into this Agreement and perform any and all of its obligations herein.
d. Severability. The invalidity or unenforceability of any provisions of this Agreement will not affect the validity or enforceability or any other provision.
e. No Waiver. No waiver of a breach of any provision of this Agreement shall be construed to be a waiver of any breach of any other provision. No delay in acting on any breach of any provision shall be construed to be a waiver of such breach.
f. Assignment. This Agreement and AHJ’s rights, duties, and obligations under this Agreement are personal to the AHJ. Therefore, those rights, duties and obligations cannot be assigned, delegated or otherwise transferred by AHJ, or by operation of law, without BuildingReports’ prior written consent. This consent may be granted or withheld in BuildingReports’ sole discretion. Any attempted assignment, delegation, or transfer by AHJ without BuildingReports’ consent shall be void, and shall constitute a material breach of this Agreement. BuildingReports may freely assign its rights and obligations under this Agreement to any subsidiary, related, or affiliated entity.
g. Binding Nature. This agreement is binding upon, and inures to the benefit of, both AHJ and BuildingReports, and each party’s respective heirs, assigns, representatives and successors.
h. Non-Exclusivity. This Agreement is non-exclusive and the parties may enter into similar agreements with other parties without restriction as to number, location, and application.
i. Force Majeure. A party shall not be liable to the other for any delay or failure to perform any provision of this Agreement if such delay or failure is caused by fire, flood, or other acts of God, acts of civil unrest or terrorism, governmental action, internet or other network failure, or by any other reason or circumstances which are beyond such party’s reasonable control.
j. Captions; Construction. Captions of the sections of this Agreement are for reference purposes only and do not constitute terms or conditions of this Agreement, nor shall they limit or affect the meaning of any term or condition in it. In this Agreement, “including” means “including but not limited to”. Use of male pronouns, e.g. “he”, “his”, “him” herein shall also mean “she”, “hers”, “her”, or “it” or “its”, as the case may be and as context requires.
k. Reproduction of this Agreement. AHJ understands and agrees that BuildingReports may reproduce this Agreement (by electronic means or otherwise) and thereafter may destroy the original document. AHJ agrees that this Agreement so reproduced shall be binding upon AHJ and enforceable and admissible in evidence against AHJ to the same extent as if the original of this Agreement had not been destroyed and was presented to AHJ.
l. Venue and Forum. The parties agree that jurisdiction and venue for any action arising out of this Agreement, or its subject matter, or the performance or non-performance under it, or on any other matter resulting from the relationship of BuildingReports and the AHJ shall be exclusively in the state and federal courts located in Gwinnett County, Georgia and the Northern District of Georgia, respectively. The parties irrevocably submit to the exclusive jurisdiction of such courts and irrevocably waive the defense of inconvenient jurisdiction. Service of process may be made in any manner recognized by the courts of Gwinnett County, Georgia. The parties also irrevocably waive its right to a jury trial on any matter arising out of this Agreement or the transactions contemplated in it.
m. Entire Agreement. This written Agreement (including the Exhibits, which are expressly incorporated herein) represents the final and complete understanding of the parties regarding the subject matter herein, notwithstanding any oral or written agreements to the contrary, including terms contained in Purchase Orders exchanged between the parties. Notwithstanding the foregoing, BuildingReports may amend any Exhibit from time to time, and after BuildingReports gives notice of the change to AHJ, AHJ’s continued use of ComplianceCenter and the Services shall indicate its assent to such amendments. Any other amendments to this Agreement shall be in a writing (including electronic) that specifically references this Agreement and shall be effective only if such writing is executed by both parties.

Exhibit A

Services

“Services” includes items set forth below:
i) Creation and Maintenance of Building records.
ii) Creation and Maintenance of User Accounts.
iii) Scheduling and Creation of Fire and Life Safety Inspections
iv) Approval of 3rd Party Fire and Life Safety Service companies within Jurisdiction
v) Access to inspection information within Jurisdiction
vi) Creation of Inspection Forms to be used by 3rd Party Fire and Life Safety Service companies within Jurisdiction.
vii) Access to more customized inspection reports
viii) Access to related industry reports on aggregate inspections: efficiency, inspection totals, statistical reports, etc.
ix) Create and Maintain history on Citations and Notifications sent to Buildings
x) Send and Receive Official Correspondence Building and Jurisdiction
xi) Technical support may or may not incur a charge, for those incidents in which it does support services are provided @ $45.00 per half-hour, with estimate of time provided before expenses incurred.
The Services also means the data management, hosting, reporting and other services to be provided by BuildingReports: BuildingReports’ Website serves as the central repository for data collected using hand-held scanning devices and allows the automatic generation of a variety of inspection reports associated with this data. The following is a partial list of the Services provided by the BuildingReports Website:
i) Integration of data sent by the appropriate application.
ii) Generation of Inspection Reports
iii) Creation of new building accounts
iv) Creation of new user accounts with specified privileges.
v) Online access to various forms of documentation, such as help files, FAQ lists, and legal documentation.
vi) Creation of Citations and Notices to be sent to Buildings

Ancillary Services

“Optional” Ancillary Services includes items set forth below:
i) Hard Copy Mail @ $1.05 per piece (upon request) - includes printing, folding, envelope insertion and postage of physical notices to Building Owners and/or Service Companies.
ii) Individual Database Correction @ $90.00 per hour (upon request - estimate provided prior) - research and correct individual database entries for building addresses and Building Owners.
iii) Ongoing Database Administration @ $90.00 per hour (upon request - estimate provided prior) - research and correct database entries for building addresses and Building Owners.
iv) Citation Payment Collection @ $15.00 per incident plus 5% (upon request) - electronic citation payment services on behalf of Cobb County.

BuildingReports Non-Member User Agreement

This BuildingReports Non-Member User Agreement (“Agreement”) is by and between BuildingReports.com, Inc., a Georgia company with a principal place of business at 1325 Satellite Boulevard, Suite 1607, Suwanee, Georgia 30024 (referred to herein as "BuildingReports") with an email address of "compliancecenter@buildingreports.com" for official notices, and the Non-Member User, name and address details as listed on the Company Information page of the Non-Members ComplianceCenter portal (referred to herein as "NMU").
WHEREAS, NMU is a non-Member user of BuildingReports’ proprietary online portal, software, database, and associated documentation (collectively referred to herein as “ComplianceCenter”);
WHEREAS, NMUs are required by law to perform periodic fire and safety inspections that are facilitated by BuildingReports’ services, proprietary online portal, software, and databases; and
WHEREAS, BuildingReports desires to safeguard data that is stored on its servers belonging to its Members and Non-Member Users ;
NOW THEREFORE, in exchange for BuildingReports’ granting access to ComplianceCenter and certain associated Services, for other good and valuable consideration, and for the mutual promises contained herein, the parties hereby agree as follows:
1. Services; BuildingReports Program.
a. BuildingReports shall provide NMU with the Services set forth in Exhibit A in accordance with the standards of workmanship and professionalism prevailing in the industry. The Services shall be rendered at the location(s) set forth on the Company Information page of Non-Members ComplianceCenter portal.
b. Subject to the terms and conditions set forth herein, BuildingReports grants to NMU a non-exclusive, non-transferable, limited license to access and use ComplianceCenter at the location specified on the Company Information page of Non-Members ComplianceCenter portal.
c. BuildingReports shall respond to email support requests within 4 hours of receipt during normal work days (Mondays through Fridays excluding Federal holidays).
d. BuildingReports shall provide live call support available during normal business hours (i.e., 8:00am through 5:00pm Eastern Standard Time Mondays through Fridays excluding Federal holidays) at rates set forth in Exhibit A.
2. NMU Responsibilities. NMU shall:
a. Designate by name the persons within NMU’s organization who have a need to access BuildingReports’ website (“Authorized Users”). NMU shall designate an Authorized User by registering each Authorized User with BuildingReports using BuildingReports’ online portal, after which each Authorized User will be assigned an account and password. Each Authorized User must be under the authority of NMU, and it is NMU’s responsibility to advise BuildingReports if an Authorized User has left his employ or should otherwise have its user account discontinued.
b. Ensure that all use of the Services, BuildingReports’ website, the documentation, ComplianceCenter are used only by NMU or Authorized Users.
c. Maintain the hardware, platforms, software and other systems that will communicate with, or be connected to, ComplianceCenter and all its component parts.
d. Use ComplianceCenter exclusively on the approved hardware and software, which NMU shall provide at its own expense, as promulgated from time to time by BuildingReports. Additionally, NMU shall provide all personnel and facilities, all hardware, software, communications equipment, telephone and communication lines, power, telephone service and other utilities as may be necessary (in BuildingReports sole opinion) for NMU to receive the Services and utilize ComplianceCenter.
e. Cooperate with BuildingReports in the performance of its Services, including promptly responding to any requests by BuildingReports for information. NMU shall perform its duties and obligations hereunder in a professional manner in accordance with applicable laws.
f. Use the BuildingReports only in compliance with all laws, rules, regulations and ordinances from every governmental authority with jurisdiction over NMU.
g. Comply with BuildingReports’ information technology and security policies as defined in this document.
h. Ensure that all data uploaded to BuildingReports’ servers is accurate and complete.
3. Payments.
a. NMU shall pay BuildingReports the agreed-upon amounts (“Fees”), for the Services BuildingReports performs, which are based on NMU’s usage of the Services, as set forth in an invoice provided to NMU on a periodic basis. All invoices are payable within fifteen (15) days after receipt. In the event the rate structure is changed, whether due to NMU’s increased usage or otherwise, as reflected on a particular invoice, NMU may elect to terminate this Agreement without penalty, such termination to be effective upon receipt of written notice by BuildingReports; provided that NMU is responsible to pay any amounts incurred up through the date of such termination.
b. NMU is responsible for all sales, use, and all other taxes, assessments, and duties which are levied by any governmental authority against BuildingReports in connection with BuildingReports’ delivery of the Services, but not including BuildingReports’ income tax. In the event such amounts are assessed against BuildingReports, BuildingReports will advise NMU and provide NMU with documentation of the tax due. NMU will remit the total amount due to BuildingReports within ten days of receiving such documentation.
c. Any payment that NMU fails to make to BuildingReports within the time specified will bear interest at a monthly rate of 1.5% or the maximum interest rate permitted under applicable law, whichever is less. The interest shall be levied from the date on which the payment was due and shall continue until full payment is made.
d. If NMU fails to pay any amount due BuildingReports for more than thirty (30) days from the date it was due, then Building Reports shall have the right to cease providing Services under this Agreement until NMU makes all overdue payments, together with any interest due. BuildingReports shall also have the right to end this Agreement, though doing so will not affect the amounts due from NMU through the date the services end. BuildingReports shall have the right to exercise either or both remedies in this paragraph immediately upon notice to the NMU.
4. Intellectual Property.
a. NMU acknowledges and agrees that BuildingReports is the sole and exclusive owner of any patents, trademarks, copyrights, and trade secrets embodied in ComplianceCenter (collectively, the “Intellectual Property”), as well as all other property rights and interests inherent in or associated with ComplianceCenter.
b. Any tangible copies of the Intellectual Property in the possession of NMU shall remain the exclusive property of BuildingReports and may not be disclosed, distributed, or furnished by NMU or to any other person or entity unless authorized by BuildingReports in writing.
c. All Intellectual Property, including all backup, archival or other copies in the possession of NMU (including its affiliates and Authorized Users) shall be destroyed as BuildingReports shall specify form time to time, and in any case within 24 hours of the termination of this Agreement.
d. NMU acknowledges and agrees that: (i) the rights granted under this Agreement are non-exclusive, and BuildingReports may grant the same or similar rights and licenses to others; (ii) that this Agreement does not grant NMU any license or rights in or to any trademark, service mark, or logo of BuildingReports; and (iii) BuildingReports has the right to disclose that NMU is a participant in, or a user of, ComplianceCenter in its promotional and advertising material.
e. NMU covenants that it shall not, either directly or indirectly on its own or on others’ behalf, modify, prepare derivative works of, reverse engineer, decompile, or disassemble each and every component of ComplianceCenter.
f. NMU shall not (and shall not attempt to) use, sell, lease, license, sublicense, give, share, communicate, distribute, or otherwise transfer the Intellectual Property, including private label branding of the Services, to any person or entity other than as expressly permitted in this Agreement.
g. NMU may not publicize or use BuildingReports® or any other trademark or service mark of BuildingReports, without the prior express written consent of BuildingReports, except in accordance with the Services, e.g. on printed NMU reports which are required to display such marks.
5.Confidential Information and Trade Secrets; Data Ownership; Use of NMU and Property Owner Data.
a. “Confidential Information” is defined to include all technical or non-technical data, information, and material, regardless of format, medium, or source, regarding the facilities, systems, hardware, software, operation, business, financial affairs, products, services, customers, independent contractors and employees of BuildingReports, and the users of ComplianceCenter, i.e. Members, Non-Member Users, and authorities-havinig-jurisdiction (e.g. fire marshalls) which NMU may become aware of as a result of its use of ComplianceCenter, or as part of the Services. Confidential Information shall include building fire and safety inspection data which is stored on BuildingReports’ servers, notwithstanding the fact that such data may be otherwise publicly-available.
b. “Trade Secrets” are defined to include the following:
i. the identity and contact information of all Members and Non-Member Users;
ii. the terms, details, and specifications of any Services to be performed by us;
iii. the terms, details and of all agreements (written and oral), work orders, proposals, quotes, statements of work, and other documents of all types between BuildingReports and NMU, including the terms of this Agreement;
iv. all source code, object code, programming code, macros, object libraries, technical specifications, files of all types (including, though not limited to, HTML and Java files), graphics, animation, computer software, script, digital imagery, illustrations, photography, video, sound effects, report formats, application data, finalized print materials, finalized applications, text, software, materials, documentation, methods, systems, processes, packaging, works, and other tangible items describing, illustrating, explaining, incorporating, or using any of these things, including all of BuildingReports’ proprietary software system which allows a Member to electronically perform data collection and record the results, specifically including software for the iOS, Android OS, PalmOS, Windows Mobile, Mac OSX, and Windows platforms which allows the collection of information and the exchange of data between the handheld device and the BuildingReports web server; and
v. any other information, without regard to form or marking, including technical or nontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, or product plans which is not commonly known by or available to the public and which information derives economic value, actual or potential, from not being generally known to , and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of reasonable efforts to maintain secrecy.
c. NMU shall not use, duplicate, or reproduce any Confidential Information or Trade Secrets; nor shall it publish, divulge, distribute, or disclose any Confidential Information or Trade Secrets to any other person or entity except in accordance with applicable laws and regulations, and then only to the minimum extent necessary to comply with such laws and regulations after giving notice to BuildingReports. NMU shall safeguard the Confidential Information and Trade Secrets to prevent inadvertent or unauthorized disclosure; in no case shall NMU use less than reasonable means to protect the Confidential Information and Trade Secrets. NMU shall ensure that any personnel working under its authority are aware of their obligations regarding the Confidential Information and Trade Secrets, and acknowledges that it shall be liable for any breach of these obligations by such personnel.
d. NMU hereby grants to BuildingReports a non-exclusive, worldwide, perpetual, fully paid-up and royalty-free license to any building fire and safety inspection data uploaded to BuildingReports servers using ComplianceCenter. NMU acknowledges and agrees that any such data shall be retained by BuildingReports for five (5) years, or for such period otherwise required by law, whichever is greater.
e. NMU hereby grants to BuildingReports non-exclusive, worldwide, perpetual, fully-paid up and royalty-free license to use all data (including reports) generated by the NMU for BuildingReports’ own advertising and promotional purposes, provided that BuildingReports anonymizes and aggregates such data with other Member and Non-Member User data. BuildingReports reserves the right to disclose data (including reports) generated by the NMU to the property owners or lessees for whom NMU collects data.
f. Either BuildingReports, or any Member or NMU whose data is disclosed as a result of a breach of these confidentiality obligations, shall have the right, but not the obligation, to enforce the confidentiality provisions of this Agreement against the breaching party.
g. NMU’s confidentiality obligations set forth in this section shall survive termination of this agreement for (i) five (5) years or the maximum time allowable by law, whichever is less, for Confidential Information, and (ii) indefinitely, for information categorized as Trade Secrets.
h. NMU hereby acknowledges and agrees that, in the event of its breach of the provisions set forth in this Section, BuildingReports, or any other Member or NMU whose information disclosed as a result of such a breach, may in addition to any other remedies available at law, seek equitable relief against the breaching party, including seeking an injunction to prevent any further breach and remedy an existing breach.
6. Subcontracting. BuildingReports may, in its sole discretion, assign or subcontract some or all of the Services to others; provided that BuildingReports shall be fully responsible for the performance of services by that subcontractor or assignee.
7. Term and Termination. This Agreement shall commence on the date upon its execution by both parties (“Effective Date”) and shall remain in effect until terminated by:
a. Either party rendering at least five (5) business days’ prior written notice to the other party;
b. Either party upon the other’s material breach of a provision of this Agreement; provided that, the breaching party shall five (5) days from receipt of written notice from the non-breaching party to cure such breach. If the breach is not cured by midnight on the fifth day, then the non-breaching party can end this Agreement immediately.
c. Either party upon immediate notice to the other party, if that other party becomes (or is adjudged) insolvent, files for relief under Federal bankruptcy laws, has a petition filed against it in Federal court for bankruptcy relief and if the petition is not dismissed within 15 days of filing; or is adjudged bankrupt; or makes a general assignment for the benefit of its creditors; or becomes subject of any proceeding under any Federal or state statute or law for the relief of debtors which is not dismissed within 15 days of filing; or if a receiver, trustee or liquidator is appointed for that party; or
d. BuildingReports, for any reason and at any time, in its sole discretion.
8. Effect of Termination. When this Agreement ends for whatever reason, NMU shall: (i) return to BuildingReports (at its expense) all copies of the Proprietary Software and Documentation, if any, in NMU’s possession, and (ii) cease all use of ComplianceCenter. Notwithstanding any of the foregoing, termination of this Agreement by either Party shall not relieve NMU of his obligations which accrued through the end date, which shall survive termination of this Agreement.
9. Warranty.
a. BuildingReports hereby represents and warrants that the Services will be performed in a workmanlike, professional, and commercially reasonable manner as judged by the standards of the industry. NMU shall immediately notify BuildingReports in writing in the event that the Services fall below such standard, and after receiving such notice, BuildingReports will use commercially reasonable efforts to either address and correct such breach or arrange a work-around.
b. NMU’s exclusive remedy for any breach of the warranties made in this this Agreement is the correction or replacement by BuildingReports of the Services or repair of the non-conforming component of ComplianceCenter, whichever is applicable.
c. Notwithstanding anything to the contrary set forth herein, BuildingReports shall have no obligation to provide maintenance or support services described herein if the performance failure of ComplianceCenter is in any way attributable to NMU’s (or anyone working under NMU’s authority): (i) deviating from the operating instructions; (ii) altering, changing, or otherwise modifying ComplianceCenter or Services in a manner not authorized in writing by BuildingReports; or if NMU or anyone working under their authority is using ComplianceCenter or Services in conjunction with non-approved hardware or software.
10. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. OTHER THAN THOSE WARRANTIES EXPRESSLY SET FORTH IN SECTION 9 ABOVE, THE SERVICES AND COMPLIANCECENTER ARE BEING PROVIDED “AS IS” AND BUILDINGREPORTS DOES NOT MAKE ANY WARRANTIES TO NMU OR ANY OTHER PERSON, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO COMPLIANCECENTER OR ANY SERVICES PROVIDED HEREUNDER. THE PROVISIONS IN SECTION 9 ARE NMU’S SOLE REMEDY FOR BREACH OF THE WARRANTIES PROVIDED IN THIS AGREEMENT. BUILDINGREPORTS DOES NOT WARRANT THE ACCURACY, VERACITY, OR COMPLETENESS OF DATA HOSTED ON ITS SERVERS THAT IS PROVIDED BY A MEMBER, NON-MEMBER USER, OR NMU.
IN NO EVENT SHALL BUILDINGREPORTS, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS, AGENTS, LICENSORS, SUBCONTRACTORS OR REPRESENTATIVES BE LIABLE FOR ANY LOSS OF DATA, OR OTHER DAMAGES RESULTING FROM ANY DELAY IN OR NON-DELIVERY OF ANY DATA TRANSMISSIONS. BUILDINGREPORTS SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING SPECIAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES WHICH ARISE FROM THE USE, OR INABILITY TO USE, THE SERVICES OR ANY BREACH OF ANY PROMISE, REPRESENTATION OR WARRANTY, OR WHICH ARISE IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, BUILDINGREPORTS' LIABILITY TO NMU SHALL BE LIMITED TO ONE HUNDRED DOLLARS AND NO CENTS ($100.00).
11. Indemnification. NMU shall indemnify, defend, and hold BuildingReports (including its officers, directors, stockholders, employees, agents, and affiliates) harmless from any losses, liabilities, claims, or causes of action arising from NMU’s breach of its confidentiality obligations. BuildingReports shall notify NMU in writing of such loss, liability, claim, or cause of action as soon as reasonably practicable after becoming aware of it, and NMU shall promptly acknowledge such notice by affirming its indemnity obligation in writing. In the event NMU fails to render such acknowledgement within a reasonable period after being notified, or if NMU otherwise fails to indemnify BuildingReports, BuildingReports may seek counsel of its own choosing and shall be entitled to recover reasonable attorney’s fees, expenses, and costs involved in defending against such losses, liabilities, claims, or causes of action.
12. Miscellaneous.
a. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, notwithstanding its conflicts of laws provisions.
b. Notices. Any notice under this Agreement may be delivered via electronic means (e.g. email), provided that such communication must be able to be acknowledged (e.g. via read receipt) by the addressee. In the event such acknowledgement is not received, notice shall be given in writing, delivered by hand or by certified or registered mail, postage prepaid, addressed as provided below (or to such other persons and addresses either Party may designate in writing). Notice can also be given by established nationwide delivery service (e.g., Federal Express, UPS). A notice shall be deemed given three days from the date of delivery or the first attempted delivery (whichever occurs first). All notices to a Party under this Agreement will be sent to the electronic or physical addresses specified at the beginning of this Agreement, as amended from time to time by giving written notice to the other party.
c. Authority. Each party hereby represents and warrants to the other that it has all consents, permits, licenses and approvals necessary for it to enter into this Agreement and perform any and all of its obligations herein.
d. Severability. The invalidity or unenforceability of any provisions of this Agreement will not affect the validity or enforceability or any other provision.
e. No Waiver. No waiver of a breach of any provision of this Agreement shall be construed to be a waiver of any breach of any other provision. No delay in acting on any breach of any provision shall be construed to be a waiver of such breach.
f. Assignment. This Agreement and NMU’s rights, duties, and obligations under this Agreement are personal to the NMU. Therefore, those rights, duties and obligations cannot be assigned, delegated or otherwise transferred by NMU, or by operation of law, without BuildingReports’ prior written consent. This consent may be granted or withheld in BuildingReports’ sole discretion. Any attempted assignment, delegation, or transfer by NMU without BuildingReports’ consent shall be void, and shall constitute a material breach of this Agreement. BuildingReports may freely assign its rights and obligations under this Agreement to any subsidiary, related, or affiliated entity.
g. Binding Nature. This agreement is binding upon, and inures to the benefit of, both NMU and BuildingReports, and each party’s respective heirs, assigns, representatives and successors.
h. Non-Exclusivity. This Agreement is non-exclusive and the parties may enter into similar agreements with other parties without restriction as to number, location, and application.
i. Force Majeure. A party shall not be liable to the other for any delay or failure to perform any provision of this Agreement if such delay or failure is caused by fire, flood, or other acts of God, acts of civil unrest or terrorism, governmental action, internet or other network failure, or by any other reason or circumstances which are beyond such party’s reasonable control.
j. Captions; Construction. Captions of the sections of this Agreement are for reference purposes only and do not constitute terms or conditions of this Agreement, nor shall they limit or affect the meaning of any term or condition in it. In this Agreement, “including” means “including but not limited to”. Use of male pronouns, e.g. “he”, “his”, “him” herein shall also mean “she”, “hers”, “her”, or “it” or “its”, as the case may be and as context requires.
k. Reproduction of this Agreement. NMU understands and agrees that BuildingReports may reproduce this Agreement (by electronic means or otherwise) and thereafter may destroy the original document. NMU agrees that this Agreement so reproduced shall be binding upon NMU and enforceable and admissible in evidence against NMU to the same extent as if the original of this Agreement had not been destroyed and was presented to NMU.
l. Venue and Forum. The parties agree that jurisdiction and venue for any action arising out of this Agreement, or its subject matter, or the performance or non-performance under it, or on any other matter resulting from the relationship of BuildingReports and the NMU shall be exclusively in the state and federal courts located in Gwinnett County, Georgia and the Northern District of Georgia, respectively. The parties irrevocably submit to the exclusive jurisdiction of such courts and irrevocably waive the defense of inconvenient jurisdiction. Service of process may be made in any manner recognized by the courts of Gwinnett County, Georgia. The parties also irrevocably waive its right to a jury trial on any matter arising out of this Agreement or the transactions contemplated in it.
m. Entire Agreement. This written Agreement (including the Exhibits, which are expressly incorporated herein) represents the final and complete understanding of the parties regarding the subject matter herein, notwithstanding any oral or written agreements to the contrary, including terms contained in Purchase Orders exchanged between the parties. Notwithstanding the foregoing, BuildingReports may amend any Exhibit from time to time, and after BuildingReports gives notice of the change to NMU, NMU’s continued use of ComplianceCenters and the Services shall indicate its assent to such amendments. Any other amendments to this Agreement shall be in a writing (including electronic) that specifically references this Agreement and shall be effective only if such writing is executed by both parties.

Exhibit A

Services

“Services” includes items set forth below:
i) Creation of Building Accounts.
ii) Creation of User Accounts.
iii) Inspection of Building Accounts.
iv) Creation and distribution of reports.
v) Access to complete backups of inspection information.
vi) Access to approved related industry reports on aggregate inspections: efficiency, inspection totals, statistical reports, etc.
vii) Schedule and manage inspection work.
viii) Technical support may or may not incur a charge, for those incidents in which it does support services are provided @ $45.00 per half-hour, with estimate of time provided before expenses incurred.
The Services also means the data management, hosting, reporting and other services to be provided by BuildingReports: BuildingReports’ Website serves as the central repository for data collected by Service Providers and allows the automatic generation of a variety of inspection reports associated with this data. The following is a partial list of the Services provided by the BuildingReports Website:
i) Integration of data sent by the appropriate application.
ii) Generation of Inspection Reports.
iii) Creation of new building accounts
iv) Creation of new user accounts with specified privileges.
v) Online access to various forms of documentation, such as help files, FAQ lists, and legal documentation.
vi) Scheduling of inspection work.


BuildingReports User Agreement

FOR AND IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS CONTAINED HEREIN, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEGED, BUILDINGREPORTS AND MEMBER HEREBY AGREE AS FOLLOWS:
1) Definitions. When used herein, the following terms shall have the respective meanings set forth below:
a) “Affiliate,” means, with respect to any Person, any other Person controlling, controlled by or under common control with such Person.
b) “Authorized Services” has the meaning set forth below:
i) Creation of Building Accounts.
ii) Creation of User Accounts.
iii) Inspection of Building Accounts.
iv) Creation and distribution of reports.
v) Access to complete backups of inspection information.
vi) Creation of Building User Accounts for viewing inspections and forms.
vii) Access to more customized inspection reports
viii) Access to related industry reports on aggregate inspections: efficiency, inspection totals, statistical reports, etc.
c) “Authorized Users” means
i) Member’s authorized and qualified personnel who need access to the BuildingReports Web Site (or any databases contained therein or accessible through such web site) in connection with the Services.
ii) End Users, all of whom must have received user accounts and passwords in accordance with BuildingReports’ rules and procedures.
d) “BuildingReports Program” has the meaning set forth in Section 3.
e) “BuildingReports Web Site” means the web site owned and hosted by BuildingReports at the URL www.buildingreports.com and any designated successor or related web sites owned and operated by BuildingReports for provision of the Services.
f) “Confidential Information” means, with respect to a party, all valuable, proprietary and confidential information belonging to or pertaining to that party that does not constitute a “Trade Secret” (as defined in Section 1(p)) and that is not generally known by or available to the party’s competitors but is generally known only to that party and those of its employees, independent contractors, clients or agents to whom such information must be confided for internal business purposes. The “Confidential Information” of a party (the “First Party”) shall not include information that
i) has become generally known by or available to the public or the First Party’s competitors through no wrongful act or omission of the other party (the “Second Party”);
ii) has been rightfully and lawfully furnished to the Second Party by a party other than the First Party on a non-confidential basis; or
iii) has been developed independently by the Second Party without use of the First Party’s Confidential Information.
g) “Documentation” means user manuals, if any, provided to Member or Authorized Users by BuildingReports.
h) “Effective Date” has the meaning set forth on the signature page.
i) “End Users” means Member’s authorized and qualified personnel who receive access to and/or the right to use the Proprietary Software in accordance with the provisions of Section 4(a).
j) “End User License Agreement” means the End User License Agreement for the Proprietary Software, a copy of which may be downloaded from http://www.buildingreports.com in the BuildingReports Web Site.
k)“Intellectual Property” means
i) copyrights, trademarks, service marks and any other rights to any form or medium of expression;
ii) trade secrets, privacy rights and any other protection for confidential information or ideas;
iii) patents and patent applications;
iv) inventions and any other items, information or theories which are protectable or registrable under any of the copyright, patent, trade secret, confidentiality or other similar laws; and
v) any other similar rights or interests recognized by applicable law.
l) “Property Owners” means building or property owners and/or managers for whom Member utilizes the BuildingReports Program to provide Authorized Services.
m) “Proprietary Software” means BuildingReports’ proprietary software system which allows End Users to electronically perform data collection and record the results, which software system is more fully described below:
i) Software for the PalmOS which allows the exchange of data between the handheld device and the BuildingReports web server.
ii) WebConnector™ and BRConnect™ are standard Windows applications that synchronize the inspection data to the BuildingReports Web Site.
n) “Services” means the data management, hosting, reporting and other services to be provided by BuildingReports:
The BuildingReports Web Site serves as the central repository for data collected using hand-held scanning devices and allows the automatic generation of a variety of inspection reports associated with this data. The following is a list of the Services provided by the BuildingReports Web Site:
i) Integration of data sent by the appropriate application.
ii) Generation of Inspection Reports
iii) Creation of new building accounts
iv) Creation of new user accounts with specified privileges.
v) Download of the latest inspection software for the hand-held scanning device and the WebConnector PC application.
vi)Online access to various forms of documentation, such as help files, FAQ lists, and legal documentation.
o) “Territory” shall mean areas serviced or covered from the location of the organization listed on the web site.
p) “Trade Secrets” means information (including, but not limited to, confidential business information, technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, lists of actual or potential customers or suppliers, Member’s Property Data that specifically identifies Member, a Property Owner or a building, and the terms of this Agreement and any associated agreements between the parties) that:
i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
2) Provision of Services.
a) Member hereby engages BuildingReports, and BuildingReports hereby agrees to use its commercially reasonable efforts to provide the Services substantially in accordance with the terms and conditions of this Agreement. Member hereby acknowledges and agrees that BuildingReports’ performance of the Services is dependent and conditioned upon Member’s full performance of its duties, obligations and responsibilities set forth in this Agreement.
b) Member will select and advise BuildingReports of the name, business address, telephone number and e-mail address of its authorized representative for coordination of the Services (the “Manager Account User”). The Manager Account User will have authority to make decisions on behalf of Member with respect to this Agreement and the provision of the Services. In no event shall Member be without a Manager Account User during the term of this Agreement.
c) Notwithstanding anything to the contrary herein, the parties hereby acknowledge and agree that Member shall have no right to control the manner, means or method by which BuildingReports performs the Services. Rather, Member shall be entitled only to direct BuildingReports with respect to the elements of Services to be performed by BuildingReports and to review and assess the performance of such Services by BuildingReports for the limited purpose of assuring that such Services have been performed substantially in accordance with this Agreement.
d) BuildingReports will use commercially reasonable efforts to ensure that our Service Level (as defined in the attached Service Level Commitment document) achieves a “Composite Score” of 99.83 or higher each month. This excludes downtime and interruptions associated with or caused by a force majeure event under Section 14, an act or omission of Member or a third party or scheduled maintenance outages. Member will promptly report to BuildingReports an inability to access Services. Based on Member’s reports verified by BuildingReports, if the Service Level composite score is less than 99.83 of the aggregate time in a particular month, excluding unavailability associated with or caused by a force majeure event under Section 14, an act or omission of Member or a third party or scheduled maintenance outages, then Building Reports will provide a credit to Member in the amount of the User Fees for such month.
3) Registration of Authorized Users.
a) Member further agrees to cause each Authorized User to register with BuildingReports by obtaining a valid user account and password with BuildingReports by following the procedures set forth at http://www.buildingreports.com on the BuildingReports Web Site.
b) Member shall be responsible for all use of the Services, the BuildingReports Web Site, the Documentation and/or the Proprietary Software (collectively, the “BuildingReports Program”) by Member’s Authorized Users and any other Person who gains access to the BuildingReports Program through Member or Member’s Authorized Users.
4) License to use BuildingReports Program.
a) Subject to the terms and conditions set forth herein, BuildingReports grants to Member a non-exclusive, non-transferable, limited license to
i) use the BuildingReports Program within the Territory for the sole purpose of providing Authorized Services to Property Owners located in the Territory, and
ii) to distribute copies of the Proprietary Software and applicable Documentation to Member’s Authorized Users located in the Territory for such purpose.
Member acknowledges and agrees that the rights and licenses granted to Member herein are non-exclusive within the Territory and that BuildingReports may grant the same or similar rights and licenses to other Persons, including BuildingReports and its Affiliates (both inside and outside the Territory). Without limiting the generality of the foregoing, any use of the Proprietary Software shall be in accordance with the End User License Agreement, and any access to or use of the BuildingReports Web Site shall be in accordance with BuildingReports’ Web Site Terms and Conditions (which can be found at http://www.buildingreports.com on the BuildingReports Web Site).
b) Member agrees that it will utilize the BuildingReports Program for the sole purpose of providing Authorized Services to authorized users. Member shall be solely responsible for ensuring that Member’s receipt of the Services and its Authorized Users’ use of the BuildingReports Program comply with all laws, rules, regulations and ordinances applicable to Member, and Member’s Authorized Users who gain access to the BuildingReports Program by or through Member.
c) This Agreement does not grant Member any rights in or to any trademark, service mark, or logo of BuildingReports or its Affiliates. Any such rights must be set forth in a separate agreement executed by the parties. Member hereby grants to BuildingReports the right to disclose that Member is a participant in the BuildingReports Program.
d) Member acknowledges that it will not gain any right or license by estoppel or otherwise with respect to the BuildingReports Program or any portion thereof, other than the rights and license expressly granted in this Agreement.
e) Member shall not (and shall not attempt to), directly or indirectly, modify, prepare derivative works of, reverse engineer, de-compile or disassemble the Proprietary Software or any other component of the BuildingReports Program. Member shall not (and shall not attempt to) sell, lease, license, sublicense, give, share, communicate, distribute, or otherwise transfer the Proprietary Software or Documentation to any person or entity other than as expressly permitted in this Agreement.
f) Member shall actively demonstrate, promote and solicit orders for Authorized Services to Property Owners in the Territory; provided, however, that Member shall not make any representations or warranties regarding the BuildingReports Program (or any portion thereof) which are not expressly set forth in the Documentation, unless expressly authorized in writing by BuildingReports in each instance.
g) BuildingReports shall provide Member with the maintenance and support services set forth below:
i) BuildingReports will respond to email support requests within four (4) business hours of receipt.
ii) Extra Phone support available for a per call fee during normal business hours (ET*).
iii) Other support services may be provided by BuildingReports to Member at BuildingReports’ then current prices.
5) Ownership, Protection and Security.
a) BuildingReports and Member acknowledge and agree that BuildingReports owns (as between BuildingReports and Member) and will retain all ownership in the Intellectual Property and all other property rights and interests associated with the BuildingReports Program (including the Proprietary Software and Documentation), subject to the rights and licenses specifically granted to Member in this Agreement and to Authorized Users in the End User License Agreement. To the extent Member has or later obtains any Intellectual Property or other property rights or interests in the BuildingReports Program by operation of law or otherwise, Member hereby disclaims such rights or interests and agrees to assign and transfer such entire interest exclusively to BuildingReports.
b) All copies or down-loads of the Proprietary Software and Documentation provided by BuildingReports to Member, all copies or down-loads of the Proprietary Software and Documentation distributed by Member to Authorized Users, and all backup or archival copies thereof made by Member or Authorized Users, are and will remain (as between BuildingReports and Member) the exclusive property of BuildingReports and may not be disclosed, distributed, or furnished by Member or Authorized Users to any other Person, except as expressly authorized by this Agreement or the applicable End User License Agreement. In furtherance of the foregoing:
i) Except with BuildingReports’ express, prior written permission, Member shall not provide or otherwise make the Proprietary Software or Documentation available to any Person in any form other than to Member’s Authorized Users who execute the End User License Agreement;
ii) Member shall reproduce and include on all copies or downloads of the Proprietary Software and Documentation made by Member all copyright or trademark notices and other notices of proprietary rights as directed by BuildingReports;
iii) Member shall, before disposing of any hardware, equipment or media, use commercially reasonable efforts to erase or destroy all portions of the Proprietary Software and Documentation contained thereon;
iv) Member shall not use the Proprietary Software or Documentation (or the BuildingReports Program) to create or aid in the creation of a software package for sale or license to others, or furnish information concerning, or copies of, the input or output of the BuildingReports Program to any Person who, to Member’s knowledge, is designing or creating a software package or program competitive to the BuildingReports Program; and
v) Member shall take all reasonable actions required in writing by BuildingReports with respect to any Person permitted access to the BuildingReports Program as will reasonably enable Member to satisfy its obligations under this Agreement.
6) Use of Member and Property Owner Data.
a) Member hereby represents and warrants to BuildingReports that it has all governmental, third Person, corporate and other consents, permits, licenses and approvals necessary for it to enter into this Agreement and perform its obligations hereunder, and that this Agreement constitutes the valid and binding agreement of Member, enforceable against Member in accordance with its terms. BuildingReports hereby agrees that any use of building, equipment or Property Owner data provided to BuildingReports hereunder or collected by BuildingReports in connection with the Services (collectively, “Property Data”) will be in accordance with the BuildingReports Acceptable Use and Privacy Policy.
b) Member hereby grants BuildingReports the non-exclusive, worldwide right to use the Property Data as provided herein and in the attached BuildingReports’ Acceptable Use and Privacy Policy. Notwithstanding anything to the contrary set forth herein or contained on the BuildingReports' Web Site, BuildingReports reserves the right to disclose Property Data to the Property Owner for whom Member collects such Property Data as otherwise required by applicable law.
7) Member Responsibilities.
a) Member shall ensure that Member’s hardware, platforms, software and other systems that will communicate with or be connected to the BuildingReports Program (or any portion thereof) are compatible with the BuildingReports Program, as specified by BuildingReports. A list of currently compatible hardware and software is set forth below (BuildingReports will provide an updated list of the below hardware and software upon request):
i) PalmOS based ScanSeries™ Software and BRInspector™
(b) Minimally requires a PalmOS version 3.0 or higher PDA
ii)WebConnector™ and BRConnect™
(a) Unobstructed Internet Connection.
(b) Any PC capable of running Windows 95, or higher.
b) Member shall provide, at no cost to BuildingReports, necessary personnel and facilities, all hardware, software, communications equipment, telephone and communication lines, power, telephone service and other utilities as may be necessary or reasonably desirable for Member to receive the Services and utilize the BuildingReports Program.
c) Member shall cooperate with BuildingReports in the performance of its Services and shall promptly respond to any requests by BuildingReports for information. Member shall perform its duties and obligations hereunder in a professional manner in accordance with applicable laws.
8) Payments.
a) BuildingReports will invoice Member monthly for all payments owing to BuildingReports hereunder, and Member agrees to pay each such invoice upon receipt.
b) Any payment that Member fails to make to BuildingReports as provided in Section 8(a) above will bear interest at a monthly rate of 1.5% or the maximum interest rate permitted under applicable law, whichever is less. If any amount due BuildingReports remains unpaid by Member beyond 30 days from the date such amount becomes payable as provided in Section 8(a) above, in addition to all other applicable rights and remedies, BuildingReports may elect to terminate this Agreement or immediately suspend any further performance under this Agreement until Member makes all overdue payments (together with interest due).
c) Member shall pay all sales, uses, goods, and services, value added and other taxes or duties assessed by local, state, federal or international authorities on the Services or Member’s use of the BuildingReports Program.
9) Subcontracting.
a) BuildingReports may, in its sole discretion, subcontract some or all of the Services to subcontractors. BuildingReports shall require the subcontractors to assume toward BuildingReports substantially all of the obligations and responsibilities, which BuildingReports, by this Agreement, assumes toward Member, including, but not limited to, the Acceptable Use and Privacy Policy.
b) BuildingReports will be responsible for the management of its subcontractors in their performance of any portion of the Services. Member may subcontract performance of its obligations only to who agree to be bound by the terms of this Agreement. No such subcontracting shall relieve Member of its obligations hereunder.
10) Mutual Nondisclosure.
a) Through exercise of each party’s rights under this Agreement, each party may be exposed to the other party’s Trade Secrets and Confidential Information. In recognition of the other party’s need to protect its legitimate business interests, each party hereby covenants and agrees that (except as provided in Section 6) it shall regard and treat each item of information or data constituting a Trade Secret or Confidential Information of the other party as strictly confidential and wholly owned by the other party and that it will not, without the express prior written consent of the other party, redistribute, market publish, disclose or divulge to any other person, firm or entity, or use or modify for use, directly or indirectly in any way for any person or entity:
i) any of the other party’s Confidential Information during the term of this Agreement and for a period of three (3) years after the termination of this Agreement; and
ii) any of the other party’s Trade Secrets at any time during which such information shall constitute a trade secret under applicable law.
b) Notwithstanding the foregoing, each party may disclose Confidential Information and Trade Secrets of the other party to those of its officers, directors, employees, agents, independent contractors and advisors who need to know such Confidential Information or Trade Secrets in order to carry out the purposes of this Agreement, except those that are employed by, own or are otherwise affiliated with or participate in business decisions of an entity that competes with Member directly or indirectly (collectively, Member’s Competitors). BuildingReports shall not, under any circumstances except as provided in paragraph 10 (c) herein, disclose Confidential Information or Trade Secrets to persons or entities that BuildingReports knows, or reasonably should know, are Member’s Competitors. Each party shall be responsible for ensuring the continued confidentiality of all Trade Secrets and Confidential Information of the other party known by, disclosed or made available to such of its officers, directors, employees, agents, independent contractors and advisors who need to know such information, including, without limitation, instructing its officers, employees, independent contractors, agents and advisors to maintain the confidentiality of such Confidential Information and Trade Secrets.
c) If a party becomes legally compelled to disclose any Confidential Information or Trade Secrets of the other party (whether by judicial or administrative order, applicable law, rule or regulation, or otherwise), such party will use all reasonable efforts to provide the other party with prior notice thereof so that the other party may seek a protective order or other appropriate remedy to prevent such disclosure; provided, however, that such party will use all reasonable efforts to maintain the confidentiality of any such Confidential Information or Trade Secrets so disclosed. If such protective order or other remedy is not obtained prior to the time such disclosure is required, such party will only disclose that portion of such Confidential Information and Trade Secrets which it is legally required to disclose.
d) Upon expiration or termination of this Agreement for any reason, each party shall return to the other party all copies, versions or abstracts of written or descriptive materials of any kind that contain or discuss any Confidential Information or Trade Secrets of the other party, and the confidentiality obligations of this Agreement shall continue in full force and effect.
e) Each party expressly understands and agrees that the covenants and agreements set forth in this Section 10 are special, unique, and of an extraordinary character, and in the event of any default, breach or threatened breach hereof by such party, the other party shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either at law or in equity, and shall be entitled to such relief as may be available to it pursuant hereto, at law or in equity. All such rights and remedies shall be cumulative, and none of them shall limit any other rights or remedies of either party. The provisions of this Section 10 shall survive any expiration or termination of this Agreement.
11) Term and Termination.
a) This Agreement shall commence as of the Effective Date and remain in effect until terminated by either party as set forth below.
b) Notwithstanding anything to the contrary in this Agreement, either party, by written notice to the other party, may terminate this Agreement or, in its discretion, suspend its performance without terminating this Agreement upon the occurrence of any of the following:
i) the other party commits a breach of any of its obligations under this Agreement that materially impairs the first party’s Intellectual Property rights; or
ii) except with respect to actions described in clause i) above, the other party commits a material breach of any of its obligations under this Agreement or the Acceptable Use and Privacy Policy and does not cure such breach within fourteen (14) days of receiving written notice from the non-breaching party specifying such material breach (or, if the breach is such that its cure would take a longer period, commenced to cure and proceeded diligently therewith) or
iii) the other party becomes insolvent, is adjudged bankrupt, or makes a general assignment for the benefit of its creditors, or becomes a subject of any proceeding commenced under any statute or law for the relief of debtors which is not dismissed within thirty (30) days of commencement or
iv)a receiver, trustee or liquidator of any of the property or income of the other party is appointed.
c) BuildingReports shall have the right to terminate this Agreement immediately upon delivery of written notice to Member if Member fails to make any payment to BuildingReports within sixty (60) days of the date such payment is due and owing as provided in Section 8.
d) Either party may terminate this Agreement upon ninety (90) days’ prior written notice to the other party.
e) A termination of this Agreement shall not relieve the parties of their continuing obligations under those provisions of this Agreement that, by their terms, survive the termination of this Agreement. Upon termination of this Agreement for any reason, Member shall:
i) promptly pay to BuildingReports any amounts then due from Member pursuant to the terms of this Agreement,
ii) return to BuildingReports or destroy all copies of the Proprietary Software and Documentation in Member’s possession, and
iii) cease all use of the BuildingReports Program
BuildingReports shall:
iv)provide to Member a copy of Member’s Property Data in BuildingReport’s possession and
v)return to Member or destroy all copies of Member’s information that are on BuildingReport’s servers and that identify customers of Member upon request.
12) Services Warranty.
a) BuildingReports hereby represents and warrants that
i) the Services will be performed in a reasonable manner and
ii) the Proprietary Software will perform substantially in accordance with applicable Documentation.
b) If Member becomes aware of a breach of the warranties set forth in Section 12(a) above, Member shall immediately notify BuildingReports in writing of such breach, and after receiving such notice, BuildingReports will
i) promptly investigate and determine the cause of such breach, and
ii) use its commercially reasonable efforts to either address and correct such breach or arrange a work-around. Member’s exclusive remedy for any breach of the warranties made in this Section 12 or elsewhere in this Agreement will be the correction or replacement by BuildingReports of the Services or non-conforming component of the BuildingReports Program, as applicable.
c) Notwithstanding anything to the contrary set forth herein, BuildingReports shall have no obligation to provide the warranty or maintenance or support services described herein if:
i) the performance failure of the BuildingReports Program is at least partially attributable to Member’s materially deviating from applicable operating instructions;
ii) Member or any other person or entity (other than BuildingReports) has modified the BuildingReports Program or Services in a manner not authorized in writing by BuildingReports; or
iii) Member is using the BuildingReports Program or Services in conjunction with a central processing unit or any other computer hardware, software, network or peripherals not approved in advance by BuildingReports.
d) OTHER THAN THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 12, THE SERVICES AND THE BUILDINGREPORTS PROGRAM ARE BEING PROVIDED “AS IS” AND BUILDINGREPORTS DOES NOT MAKE ANY WARRANTIES TO MEMBER OR ANY OTHER PERSON, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE BUILDINGREPORTS PROGRAM OR ANY SERVICES PROVIDED HEREUNDER. THE PROVISIONS OF THIS SECTION 12 SET FORTH MEMBER’S SOLE REMEDY FOR BREACH OF THE WARRANTIES PROVIDED IN THIS AGREEMENT.
13)Indemnification.
a) Member hereby indemnifies BuildingReports and its Affiliates and their respective officers, directors, employees, agents and independent contractors (collectively, the “BuildingReports Indemnitees”) and agrees to defend and hold the BuildingReports Indemnitees harmless from and against any and all losses, costs (including court costs and reasonable attorneys’ fees), damages, settlements, suits, actions, expenses, taxes, fines, penalties, liabilities, and claims (collectively, “Losses”) sustained by or involving the BuildingReports Indemnitees arising out of, resulting from or relating to
i) any breach by Member of this Agreement,
ii) use of the BuildingReports Program or Services by Member, any of Member’s personnel, contractors or Authorized Users, or any other Persons who gain access to the BuildingReports Program or Services through Member, except to the extent such claims arise out of BuildingReports’ negligence or willful misconduct, and
iii) any claims made by third parties in connection herewith, except to the extent such claims arise out of BuildingReports’ negligence or willful misconduct.
b) IN NO EVENT SHALL BUILDINGREPORTS OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS, AGENTS, SUBCONTRACTORS OR REPRESENTATIVES BE LIABLE HEREUNDER FOR ANY LOSS OF DATA (EXCEPT TO THE EXTENT SUCH LOSS OF DATA OCCURS ON BUILDINGREPORT’S NETWORK AND IS CAUSED BY BUILDINGREPORTS) OR OTHER DAMAGES RESULTING FROM ANY DELAY OR DEFECT IN OR NON-DELIVERY OF ANY DATA TRANSMISSIONS. NEITHER PARTY SHALL BE LIABLE FOR ANY OTHER SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY OF THE FOREGOING ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR BUILDINGREPORTS PROGRAM OR ANY BREACH OF ANY REPRESENTATION OR WARRANTY, WHETHER OR NOT EITHER PARTY HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING AND REGARDLESS OF THE NATURE OF THE CLAIM OR FORM OF ACTION (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE).
c) UNDER NO CIRCUMSTANCES SHALL BUILDINGREPORTS’ TOTAL LIABILITY TO MEMBER OR ANY OTHER PERSON, REGARDLESS OF THE NATURE OF THE CLAIM OR FORM OF ACTION (WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EXCEED THE TOTAL AMOUNT PAID TO BUILDINGREPORTS BY MEMBER HEREUNDER.
14) Force Majeure. BuildingReports shall not be liable to Member or any other Person for any delay or failure to perform the Services or any provision of this Agreement if such delay or failure is caused by an act of God or any factor beyond the reasonable control of BuildingReports, or the failure of Member to comply with its obligations and responsibilities under this Agreement.
15) No Third Party Beneficiaries. Nothing contained in this Agreement shall be deemed to create, or be construed as creating, any third party beneficiary right of action or other right of third parties.
16) Assignment. Member may not assign this Agreement (by operation of law or otherwise) without the express, prior written consent of BuildingReports in each instance.
17) Waiver. Neither party shall be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of the waiving party. No waiver by either party of any provision hereof on one occasion shall constitute a waiver of such provision on any other occasion.
18) Severability. The invalidity or unenforceability, in whole or in part, of any provision, term, or condition hereof shall not affect the validity or enforceability of the remainder of such provision, term or condition or of any other provision, term, or condition.
19) Entire Agreement. This Agreement, together with all Exhibits and Schedules hereto (all of which are incorporated herein by reference), constitutes the entire understanding and agreement of the parties, and supersedes all prior and contemporaneous understandings and agreements, written or oral, relating to the subject matter hereof.
20) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia without regard to its rules concerning conflicts of laws.
21) Captions. Captions of the sections of this Agreement are for reference purposes only and do not constitute terms or conditions of this Agreement, nor shall they limit or affect the meaning of any term or condition hereof.
22) Amendments. This Agreement may not be amended unless such amendment is in writing and signed by both parties hereto.
23) Notices. All notices and other communications in connection with this Agreement shall be in writing and (a) delivered personally, (b) sent by an express national courier service or, (c) sent by pre-paid, first class certified mail, return receipt requested. All notices and other communications contemplated by this Agreement shall be addressed as follows:
BuildingReports
1325 Satellite Boulevard, Suite 1607
Suwanee, GA 30024
Attention: Membership Services
Member:
The address specified on the signature page attached hereto or at such other address as Member may designate by written notice. Notice by courier or certified mail shall be effective on the date it is officially recorded as delivered to the intended recipient by return receipt or the date of attempted delivery where the intended recipient refuses delivery. Notice delivered personally shall be deemed to have been delivered to and received by the addressee, and shall be effective on the date of delivery.
24) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
25) Venue and Forum. THE PARTIES HERETO AGREE THAT VENUE IN ANY AND ALL ACTIONS AND PROCEEDINGS RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE IN THE STATE AND FEDERAL COURTS IN AND FOR FULTON COUNTY, GEORGIA, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION FOR SUCH PURPOSE, AND THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING. SERVICE OF PROCESS MAY BE MADE IN ANY MANNER RECOGNIZED BY SUCH COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
26) Attorney’s Fees. Should either party employ an attorney or attorneys to enforce any of the provisions hereof, or to protect its interest in any matter arising under this Agreement, or to recover damages for the breach hereof, the non-prevailing party in any final judgment arising there from agrees to pay to the other party all reasonable costs, charges and expenses, including attorneys’ fees, expended or incurred in connection therewith.
27) Inspection Rights. During the term of this Agreement and for ninety (90) days thereafter, either party may, at its sole cost and after reasonable prior notice to the other party, reasonably inspect such information and systems of the other party as are necessary to verify the other party’s compliance with the terms of this Agreement and the Acceptable Use and Privacy Policy; provided that such inspection does not unreasonably interfere with the day to day operations of the other party and any information obtained during such inspection is subject to the rights, restrictions and obligations in Sections 5 and 10. A party may conduct such an inspection no more often than once per year during the term of this Agreement and no more often than once following the termination of this Agreement. Notwithstanding anything to the contrary in this Section 27, neither party shall be entitled to inspect any information relating to any third party.