Welcome to insights.buildly.io! By using our Website, you acknowledge that you have read and understood these terms of use (the “Terms”), which incorporate by reference our Privacy Policy, located at www.buildly.io/privacy, and agree to be bound by the Terms.

It is your obligation to review these Terms before using the Website. If you do not understand or have questions about the Terms, please stop all use of the Website and contact us at [email protected].

Any changes to these Terms will be effective immediately upon our posting them to the Website, unless otherwise stated. We reserve the right to change the contents of the Website at any time, with or without notice.

Definitions

• “Buildly” means Buildly, Inc., a Delaware corporation, who is the owner and operator of the Website.

• “Website” means the website located at insights.buildly.io.
• “Content” means any and all material, existing or having existed on the Website in any fashion from any origin and in any form whether digital, electronic, posted, deleted, archived, embedded, or linked or contained in any subpage of the Website or existing as data, designs, text (on every page of the Website, whether editorial, navigational, or instructional), images, graphics (including all logos, buttons, and other graphical elements on the Website, including the color combinations and the page layout of the Website, with the exception of trademarks and intellectual property belonging to third parties), code or programming (includes both client-side code and server-side code (including compiled or interpreted code in any computer language, databases, etc.) used on the Website), and includes all material that we have provided on or as part of the Website or which any Users have submitted, posted, uploaded, or otherwise provided to the Website.
• “Subscriber” means any person or entity who investigates, initiates, or completes a signup for a subscription to the System with Buildly.
• “Services” means any of the products or services provided by or through Buildly, including subscriptions to the System.
• “System” means the software as a service offering of Buildly that is offered in connection with the Website.
• “User” means any person or entity, as the case may be, who accesses the Website. As a User, you are subject to these Terms and our Privacy Policy www.buildly.io/privacy and agree to abide by all terms and conditions contained in these Terms.

We hereby grant you a limited license to view and use the Website solely as an aid to properly engaging with the Website as a User. You may use the Website only in a manner consistent with your bona fide personal or internal business needs.

If a Subscriber creates an account on the Website, then Subscriber shall ensure that all users of Subscriber’s account, whether or not they have separate usernames or passwords, comply with the restrictions on use and disclosure set forth in these Terms and in any agreement governing the subscription.

Subscriber is responsible for, including being liable to Buildly for, (1) any person’s use of the Website that is authorized or permitted by Subscriber, including any use or conduct that violates the AUP or other requirements of these Terms applicable to Subscriber; and (2) any use of the System through Subscriber’s account, whether authorized or unauthorized. Subscriber is responsible to, at its discretion, arrange for or establish the liability to Subscriber of any such person for their actions or omissions.

Subscriber shall use reasonable efforts to prevent unauthorized access to the System, including by protecting its passwords and other log-in information. Subscriber shall notify Buildly promptly following Subscriber’s knowledge, awareness, or good-faith suspicion that Subscriber’s log-in information has been compromised.

Subscriber shall notify Buildly immediately of any known or suspected unauthorized use of the System or breach of its security and shall use reasonable efforts to halt and remediate any such breach.



The Website, the System, and any Services are not intended for the use of children under the age of 13. Children under the age of 13 may not use or submit any information to the Website, and their guardians should not permit them to do so.

Individuals older than 13 but under the age of 18 may access the Website or System only under the supervision of a parent or legal guardian who agrees to be bound by these Terms and responsible for all of the User’s actions taken on the Website. These age restrictions are based on applicable law for the benefit of such children.

Except as provided in these Terms or by the Website itself, you may not:

• use (or plan, encourage or help others to use) the Website for any purpose or in any manner that is prohibited by these Terms or by applicable law;
• download (other than page caching), excerpt, summarize, copy, or create derivative works from any portion of the Website;
• gather information from the Website from data mining, robots, spiders, or similar extraction tools;
• interfere with the proper operation of the Website including by attacking, hacking into, or otherwise attempting to penetrate any non-publicly accessible elements of the Website or its servers or network, through the use of bots, Trojan horses, Viruses, DNS attacks, or any other technology that is designed or intended to interfere with the proper operation of the Website or the use of the Website by any User;
• circumvent or attempt to circumvent any security or access control technology implemented on the Website or its associated servers and networks;
• advertise or otherwise engage in any commercial endeavor, including any pyramid, network marketing, Ponzi, or similar scheme;
• impersonate or misrepresent your connection to any other entity or person or otherwise manipulate identifiers to disguise the origin of the content;
• disrupt the normal flow of communications or affect the ability of any User to use this Website; or
• advocate illegal activity or an intention to commit an illegal act or violate any applicable local, state, national or international law.

We do not assume any obligation to review or monitor the Content or other information submitted to the Website by third parties. We may review some, none, or all of the information submitted to the Website. We reserve the right to remove, edit, or reject any information submitted to the Website for any reason or no reason. You assume the responsibility of verifying the accuracy of any posted information through your own independent investigation.



If you choose to provide any personal information via this Website that is not User-Generated Content, the information will be used only for the purposes described in our Privacy Policy www.buildly.io/privacy. We may collect or share certain information based on your usage of the Website, as described in, and subject to, our Privacy Policy. Information posted to the System is governed by the terms applicable to the System and your Subscription.

To facilitate communications between you and us, this Website offers you the ability to contact us. Although we strive to protect and secure our online communications, and use the security measures detailed in our Privacy Policy to protect your information, you and we both acknowledge that no data transmitted over the Internet can be guaranteed to be completely secure and that no security measures are perfect or impenetrable. You agree to release us from (1) any liability to you for any unaccepted or unprocessed email instructions or requests and (2) from any loss or damage arising out of any unauthorized use by third parties of any information that you send by email. If you would like to transmit sensitive information to us, please contact us, without including the sensitive information, to arrange a more secure means of communication.

Prohibited Information

Please do not send us any confidential or proprietary information or trade secrets through the Website. They are not protected by any confidentiality agreement, and you do so at your own risk.

Information you submit through the Website or otherwise may not contain:

• commercial speech, such as links to other websites, solicit money or offer securities, or contain any chain letters, pyramid schemes, or spam;
• the intellectual property of a third party, including trade secrets, except in accordance with applicable law (that is, fair use or appropriate permission) or infringe on such IP;
• material that is false or misleading or impersonates another person, or misstates or misleads as to identity, gender, or age;
• material that is harmful, threatening, abusive, harassing, tortious, defamatory, obscene, invasive of another’s privacy, or otherwise unlawful;
• viruses, worms, time bombs, Trojan horses, or other harmful or disruptive components or links to such items; or
• any robot, spider, website search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents.

Buildly owns all intellectual property rights relating to the Buildly brand and other content including: copyright, trademark, service mark, trade name, trade dress, logo, patents and patentable subject matter, trade secrets, and data elements and other Content that has or provides the “look and feel” of the Buildly brand image, as well as our own Content, including the text, graphics, programming (including source and object code), photographs, video, and audio contained in the Website or the System (the “Intellectual Property”). All other intellectual property not owned by Buildly is the property of its respective owner or licensee, as the case may be.

You may not display, copy, modify, create derivative works of, sell, or distribute any of the Intellectual Property, or use it in any other way for public or commercial purposes except in accordance with these Terms and the intended purpose of the Website.

We will respond to claims of copyright and trademark infringement in accordance with applicable law. We will promptly process and investigate notices of alleged infringement by third parties and will take appropriate actions under applicable law, including the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(2).

Reporting Infringement

Only the intellectual property rights owner may report potentially infringing items through this reporting system. If you are not the intellectual property rights owner, you should contact the intellectual property rights owner, who can choose whether to use the procedures set forth in these Terms.

If you believe that your work is the subject of copyright infringement or a trademark infringement, provide our copyright agent with the following information:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing is subject to liability for damages.

Once a proper, bona fide notification of infringement is received by the designated agent, our policy is to:

1. Remove or disable access to the allegedly infringing material;
2. Notify the User whose material has been removed or disabled; and
3. For repeat, flagrant, or bad-faith offenders, remove the allegedly infringing material from the Website and, in our discretion, terminate such User’s access to the Website and the Services.

Responding to a Notice of Infringement

If after receiving a notice of infringement, you may elect to send us a counter-notice. To be effective, the notice must be in writing, provided to our designated agent, and include substantially the following (please consult your own attorney or see 17 U.S.C. §512(g)(3) to confirm these requirements):

A physical or electronic signature of the User;

Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

A statement under penalty of perjury that the User has a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

The User's name, address, and telephone number, and a statement that the User consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the user's address is outside of the United States, for any judicial district in which Buildly may be found, and that the user will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Send the notice to our agent for notice of claims of copyright or trademark infringement as follows:

1. By email: [email protected]
2. By mail: 13203 SE 172nd Ave STE 166, PMB1013 Happy Valley Oregon , Oregon 97086

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification is subject to liability for damages.

Disclaimers and Limitations

Your consent and agreement to the following disclaimers and limitations is a material inducement for us to permit you to access the Website or use the Services.

THE WEBSITE, THE SYSTEM, AND THEIR CONTENT, INCLUDING ALL PRODUCTS OR SERVICES FROM BUILDLY, ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY. BUILDLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.

BUILDLY DISCLAIMS THE APPLICABILITY OF ANY EXPRESS OR IMPLIED WARRANTIES SET FORTH ON THIS WEBSITE TO ANY SUBSCRIBER TRANSACTION AND MAKES ONLY THOSE WARRANTIES THAT MAY BE SET FORTH IN THE TERMS AND CONDITIONS APPLICABLE TO A SUBSCRIBER TRANSACTION.

BUILDLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THIS WEBSITE OR THE SYSTEM IF THE OFFER OR SALE OF ANY PRODUCT OR SERVICE OR SYSTEM OFFERED THROUGH THIS WEBSITE IS ILLEGAL IN YOUR JURISDICTION.

BUILDLY DOES NOT WARRANT THAT THE CONTENT, FUNCTIONS, OR SERVICES CONTAINED IN OR ACCESSED THROUGH THE WEBSITE OR THE SYSTEM WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, OR ERROR-FREE. YOU, AND NOT BUILDLY, ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IF THERE IS ANY LOSS OR DAMAGE ARISING FROM OR IN CONNECTION WITH THE USE OF THE WEBSITE, THE SYSTEM, THEIR CONTENT, OR ANY SERVICES. BUILDLY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OF THE WEBSITE OR THE SYSTEM OR THE RESULTS OF THEIR USE RELATED TO ACCURACY, RELIABILITY, OR OTHERWISE. THE WEBSITE OR THE SYSTEM MAY INCLUDE ERRORS (INCLUDING TECHNICAL OR TYPOGRAPHICAL ERRORS), AND WE MAY MAKE CHANGES TO THE WEBSITE OR THE SYSTEM AT ANY TIME, WITH OR WITHOUT NOTICE.

NEITHER BUILDLY NOR ANY OTHER PERSON OR ENTITY ASSOCIATED WITH THE DESIGN OR MAINTENANCE OF THE WEBSITE OR THE SYSTEM WILL BE HELD LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY DAMAGE, LOSS, INJURY, OR MALFUNCTION ASSOCIATED WITH YOUR USE OF THIS WEBSITE, THE SYSTEM, OR THE SERVICES.

Third Parties and Third-Party Websites

The Website may contain links to other websites for your convenience and information. Links may be contained on pages, or in blog posts, emails from us, or newsletters we make available from time to time.

Such links may be to advertisers, merchandise retailers, payment processors, content providers, social media or other companies who may use our logo or style as a result of a co-branding agreement. These websites may be operated by companies that are not affiliated with Buildly and may have different privacy policies and terms of use. Notwithstanding the presentation of, or links to, any third-party information or website on the Website, such presentation is not an endorsement, guarantee, representation, or warranty, either express or implied, by us on behalf of any third party. Buildly does not control the content that appears on these websites or their privacy practices.

We hereby disclaim any liability or responsibility for the content, subject matter, or substance of any information accessed or obtained from third-party websites accessed from or via the Website. Accessing third-party websites from our Website is therefore done at your own risk.

These Terms apply only to the Website and do not apply to any websites, even those controlled by us, that are linked to the Website. For access to the terms of use or privacy policies of linked websites, you should refer to the policies of those websites.

We attempt to ensure that information on the Website is complete, accurate, and current. Despite our efforts, the information on this Website may be inaccurate, incomplete, or out of date, and we make no representation to you about the completeness, accuracy, or timeliness of any information on the Website, such as information about the nature or characteristics of any services we provide, including pricing or terms of sale.

Viruses

Buildly does not assume any responsibility or risk for your use of the Internet and the myriad of risks it presents.

We cannot and do not guarantee that the materials contained on this Website or in the System will be free of viruses, worms, or other code or related hazards that may have destructive properties (collectively, “Viruses”). It is your responsibility to ensure that you have sufficient procedures, firewalls, checkpoints, and safeguards within your computer system to satisfy your particular requirements to protect against Viruses.

Limitations of Liability

IN NO EVENT WILL BUILDLY, ITS AFFILIATES, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT, OR SPECIAL DAMAGES, (INCLUDING LOST PROFITS) WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BUILDLY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIMITATIONS SET FORTH IN THIS SECTION MAY NOT APPLY TO YOU. IF THE FOREGOING LIMITATIONS ARE HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, AND IF BUILDLY IS HELD RESPONSIBLE BY ANY COURT, THEN THE MAXIMUM LIABILITY OF BUILDLY TO YOU FOR ANY TYPE OF DAMAGES WILL BE LIMITED TO THE AMOUNT YOU PAID BUILDLY FOR THE SYSTEM, PRODUCTS, OR SERVICES.

Indemnification

You shall indemnify, defend and hold harmless Buildly, its affiliates, and their respective officers, directors, managers, agents, employees, and contractors from any losses or liabilities including reasonable attorneys’ fees and costs of suit, arising out of any claims, actions, demands, liabilities, and settlements, including third-party claims and causes of action, arising out of or related to any one or more of the following: (1) your use of the Website or the Services; (2) information, including Submissions, that you submit, transmit, or otherwise make available via the Website; (3) your breach of these Terms; (4) your use of the intellectual property of a third party; (5) any investigations of or involving you or your conduct by Buildly, law enforcement, or governmental authorities; (6) your violation of any applicable law; (7) User-Generated Content submitted by you; (8) any use of your account or credentials to the extent not resulting from our negligence; and (9) your use of this Website to investigate, initiate, or complete a subscription transaction, if the offer or sale of any products, services, or the System offered through this Website is illegal in any jurisdiction to which you are subject.

Release

You, on behalf of your successors and assigns or heirs and personal representatives, as the case may be, hereby irrevocably and fully release Buildly, its affiliates, and their respective officers, directors, managers, agents, employees, and contractors from and against any and all suits, claims, actions, causes of action, arbitration, liabilities, obligations, damages, losses, penalties or fines known or unknown, arising out of or in connection with information or Submissions provided by third parties to, through, or in connection with the Website, the System, or the Services.

Dispute Resolution

Governing Law. Oregon law governs your use of the Website, the System, and the Services and all disputes, claims, actions, suits, or other proceedings arising out of or related to the Website, the System, the Services, these Terms, or the Privacy Policy.

Dispute Resolution. The parties shall first use good-faith efforts to attempt to resolve any dispute, claim, or controversy arising out of or relating to the Website, the System, the Services, these Terms, or the Privacy Policy by negotiation before bringing any action, other than an action for preliminary injunctive relief.

Venue. Any mediation, dispute or court proceeding based on or arising out of the Website, the System, the Services, these Terms, or the Privacy Policy must be brought in the state or federal courts sitting in Oregon.

Jurisdiction. You and Buildly hereby irrevocably consent to the personal jurisdiction by such courts. You and Buildly represent that such courts are a convenient forum.

Time period for bringing claims. Regardless of any statute or law to the contrary, any claim under these Terms or Privacy Policy must be brought within one (1) year after the cause of action arises, or such claim will be forever barred and deemed released.

1. Service. The Company shall provide the Customer with access to the Company’s SaaS-based software and services known as Buildly Insights (the “Service”) according to the terms set forth in this Agreement. The Company retains all rights in the Service, including all rights under the patent, copyright, and trademark laws of the United States or other applicable jurisdictions (“Intellectual Property Rights”).

2.1 Ownership of Customer-Furnished Items. The Customer hereby grants to the Company a limited, worldwide, non-transferable, non-exclusive license to use the Customer-Furnished Items as may be reasonably necessary or advisable to perform the Company’s obligations under this Agreement.

2.1.2 The Customer acknowledges that the Company may have to retransmit and republish some Customer-Furnished Items to third parties, solely as desired by the Customer, for certain features of the Service, now or in the future, to function as intended. The Customer acknowledges that it is the Customer’s responsibility to determine what safeguards or restrictions the Customers wants to place on third parties regarding the use of Customer-Furnished Items.

2.2 Ownership of Inventions. The Customer acknowledges that the performance of this Agreement by the Company may result in the Company or its affiliates developing, creating, or using pre-existing, computer programs, software, concepts, methods, processes, including the Service, and any improvements, modifications or enhancements made to any of the foregoing items (“Inventions”). The Company will retain all rights in the Inventions, including all Intellectual Property Rights, and the Customer hereby disclaims and waives any rights in any Invention in connection with this Agreement.

(a) The Service offers the following subscription tiers:

• Free, Discovery, Growing, Enterprise

Current pricing for these tiers is available at insights.buildly.io. Pricing is subject to change at any time. Price changes for subscriptions will become effective immediately before the next renewal.

3.2 Additional Terms. The Customer acknowledges the Service will be (1) hosted in a shared environment on servers under Company’s control on which the data of other customers and users may be stored, and (2) made available to the Customer via the Internet at insights.buildly.io (the “Website”). The Company shall use reasonable efforts to make the Service available online to the Customer in a continuous manner (except as set forth in this Agreement), to correct services outages in a timely manner, and to minimize periods during which the Service cannot be accessed by Customer as a result of circumstances under the Company’s control (such as planned maintenance, upgrades, and updates), consistent with standard industry practices and subject to system security requirements.

3.3 Limited Reliance. The Service is provided solely for the Customer’s benefit, and the Company does not intend for any person or entity other than the Customer to rely on the Service as provided to the Customer. The Customer shall not disclose the Service to any person or entity except to: (1) the Customer’s employees, and (2) independent contractors of the Customer provided that such contractors access the Service solely for the purpose of their providing services to the Customer relating to the subject matter of this Agreement (such employees and contractors, the “Authorized Users”). The Customer shall ensure that all Authorized Users comply with the restrictions on use and disclosure set forth in this Agreement, and the Customer will be liable to the Company for any non-compliance by any Authorized User. The Company may immediately terminate or suspend an Authorized User’s access to the Service if the Company believes in good faith that there has been a violation of the restrictions of this Agreement. The Company shall provide written notice to the Customer promptly following any such termination or suspension of access.

3.4 Acceptable Use. The Customer shall not, as applicable: (1) sell, re-license, rent, lease, or provide service bureau or timeshare access to the Service, or (2) use the Service for the provision of services to third parties except through the Service itself. The Customer acknowledges that the Service is confidential and proprietary to the Company. The Customer shall not disclose the Service to or permit access to the Service to any third party including to any person, customer, organization, or other entity, or their employees or agents, whether on a for-profit, loan, gratuitous, temporary, or other basis, whether through consulting, training, or other services provided by the Customer, or in any other manner except upon the express prior written consent of the Company.

3.5 Updates. The Company may provide Updates, modifications, or enhancements to the Service. Any such Updates, modifications, or enhancements will be provided to the Customer as and when they are commercially released. “Update” means a set of procedures or new program code implemented by the Company (1) to correct errors or implement bug fixes in the Service, (2) to allow the Service to continue to function under supported versions of an applicable operating system or related software such as web browsers, or under a newly available operating system, or (3) that includes modifications and enhancements to improve functioning of the Service, which may include elimination of features previously provided.

4. Limited Support. The Company will provide maintenance support to the Customer to provide a means (1) for answering the Customer's questions concerning use of the Service; and (2) for providing assistance in solving problems encountered in the Customer's use of the Service. The Customer may contact the Company for end-user support at [email protected]. 

5. Customer Responsibilities. The Customer shall be solely responsible for, among other things (1) the performance of its personnel and agents; (2) the accuracy and completeness of all Customer-Furnished Items; (3) maintaining all software, hardware, and other equipment used by the Customer to access and use the Service; (4) securing and maintaining all rights required for use of any Customer-Furnished Items in connection with the Service, and (5) obtaining and providing the Customer-Furnished Items in accordance with all applicable laws.

6. Payment. The use of the Service is provided to the Customer at the fees and for the periods selected by the Customer during the signup and Checkout Process on the Website. The Customer shall make payments consistent with such selections. Unless otherwise stated during the Checkout Process, fees for Subscriptions do not include applicable sales taxes or similar charges.

6.1 Payment Failure. If the Customer’s payment method becomes unavailable, the Company will use good-faith efforts to obtain updated payment information from the Customer. If Company is unable to obtain updated payment information from the Customer, the Company may terminate the Customer’s subscription for breach of the payment obligation.

6.2 Cancellation. 

7. Term; Termination. This Agreement begins on the Effective Date and will remain in effect until terminated according to its terms. Either party is entitled to terminate this Agreement on account of the other party’s material breach upon three (3) days’ prior written notice, provided that the breaching party has not cured the breach within that period. Upon termination of this Agreement for any reason, the Customer’s subscription to the Service will immediately terminate, and the Customer will have no further access to the Service. Once the Agreement terminates, the Company will have no responsibility to host any Customer-Furnished Items under this Agreement. The Customer should retain copies of all Customer-Furnished Items posted to the Service. The Company shall use good-faith efforts to advise the Customer from time to time if backup, download, or other data access services are available for free or for a fee.

8.1 Confidentiality. To the extent that, in connection with this Agreement, either the Company or the Customer (each, a “Receiving Party”) comes into possession of any Confidential Information of the other (a “Disclosing Party”), the Receiving Party shall not disclose such information to any third party without the Disclosing Party’s consent, using at least the same degree of care as the Receiving Party employs in maintaining the confidence of its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care. “Confidential Information” means all non-public information that should reasonably be understood by the Receiving Party, because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the Disclosing Party, including information relating to the Disclosing Party’s business, properties, methods of operation, software, trade secrets, inventions, discoveries, know-how, and other intellectual property and specifically includes the Service and each Project. “Confidential Information” includes this Agreement and its terms. Confidential Information may be disclosed in written or other tangible form (including as recorded on magnetic, optical or other storage media) or by electronic, oral, visual or other means.

8.2 Limited Use. The Receiving Party shall use the Confidential Information only in connection with the performance of its obligations and the enforcement of its rights under this Agreement. The Disclosing Party hereby consents to the Receiving Party’s disclosure of such Confidential Information (1) as expressly permitted by this Agreement, (2) to contractors, whether located within or outside of the United States, that are performing services in connection with this Agreement and that have agreed in writing to be bound by confidentiality obligations similar to those in this Agreement, (3) as may be required by law, regulation, judicial or administrative process, or in connection with litigation pertaining to this Agreement, or (4) to the extent such information (A) is or becomes publicly available other than as the result of a disclosure in breach of this Agreement, (B) becomes available to the Receiving Party on a non-confidential basis from a source that the Receiving Party believes is not prohibited from disclosing such information, (C) is already known by the Receiving Party without any obligation of confidentiality with respect to it, or (D) is developed by the Receiving Party independent of any disclosures of such information by the Disclosing Party.

9.1 Limitation of Liability. Neither party, its contractors, or their respective personnel will be liable to the other for any claims, losses, or liabilities relating to this Agreement (“Claims”) for an aggregate amount in excess of the fees paid by the Customer to the Company during the 12-month period immediately preceding the date on which the initial act or omission giving rise to the liability first occurred. IN NO EVENT WILL EITHER PARTY, ITS CONTRACTORS, OR THEIR RESPECTIVE PERSONNEL BE LIABLE FOR ANY LOSS OF USE, DATA, GOODWILL, REVENUES, OR PROFITS (WHETHER OR NOT DEEMED TO CONSTITUTE A DIRECT CLAIM), OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY LOSS, DAMAGE, OR EXPENSE RELATING TO THIS AGREEMENT. The provisions of this Section 9.1 do not apply to (1) any Claim for which one party has an express obligation to indemnify the other under this Agreement, (2) a breach of Section 3 or Section 8, (3) any amounts owed by the Customer to the Company for the Fees provided for under this Agreement, or (4) the extent resulting from a party’s bad faith or intentional misconduct. In circumstances in which any limitation on damages or indemnification provision under this Agreement is unavailable, the parties shall ensure that the aggregate liability of each party, its contractors, and their respective personnel for any Claim does not exceed an amount that is proportional to the relative fault that such party’s conduct bears to all other conduct giving rise to the Claim.

9.2 Limited Warranties. The Company warrants that (1) the execution, delivery and performance of this Agreement by Company will not conflict with, breach, or cause a default under, any material contract with any third party; and (2) it has the right to provide a subscription for the Services.

9.3 OTHER THAN THE WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY. THE COMPANY HEREBY DISCLAIMS ALL IMPLIED OR EXPRESS WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9.4 Time Limit for Bringing Actions. Any action, regardless of form, arising under or relating to this Agreement must be brought not later than one (1) year after the cause of action has accrued, except that an action for non-payment must be brought not later than two (2) years after the due date of the last payment owed to the party bringing the action.

10.1 Obligations. The Customer shall indemnify the Company, its directors, officers, equity holders, employees, and agents, and affiliates of any of them, against all losses and liabilities, including costs of litigation and reasonable attorneys' fees, arising from any claims asserted by a third party (“Liabilities”) arising out of (1) any intentional misconduct or negligent act or omission of the Customer, (2) any violation by the Customer, its Authorized Users, or its representatives of any law applicable to the performance of the Customer’s obligations under this Agreement; or (3) material or information created or provided by the Customer, including any Liabilities arising from the actual or alleged infringement by the Customer of any third-party patent, trademark, or copyright pertaining to such material or information.

10.2 Indemnification Procedures. The Company shall use reasonable efforts to provide the Customer with prompt written notice of any claim for which indemnification is sought under this Agreement and shall reasonably cooperate with Customer in connection with any such claim. The Customer will be entitled to control the handling of any such claim with counsel of its own choosing, subject to ethical obligations and conflicts of interest, and to defend or settle any such claim, provided, however, that the Customer shall not enter into any settlement that would require Company to admit to any liability or to take or refrain from taking any action, without Company’s prior written consent.

Any notice required or permitted to be given under this Agreement must be in writing. Notice will be deemed given (1) upon receipt when hand delivered or sent by a reputable commercial overnight courier, or (2) five (5) business days following mailing by registered or certified United States mail, return receipt requested, postage prepaid, and addressed to the Company at its address set forth below or to the Customer at the address provided by the Customer on its account information page.

With a copy, which will not constitute notice, to:

12.1 Force Majeure. Neither party will be liable to the other party for damages arising out of delays or failures to perform under this Agreement to the extent that any such delays or failures result from any cause beyond the reasonable control of the party affected, such as fire, earthquake, explosion, casualty, strike, war, riot, civil disturbance, act of God, any reasonably unforeseeable change in state or national law, decree or ordinance, or any executive or judicial order provided that the affected party promptly informs the other of all relevant information.

12.2 Waiver of Jury Trial. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM RELATING TO THIS AGREEMENT OR THE SERVICE.

12.3 Independent Contractor. Each of the Company and the Customer is an independent contractor and neither party is, nor will be considered to be, nor shall purport to act as, the other’s agent, partner, fiduciary, joint venturer, or representative.

12.4 Assignment. The Customer may not assign any of its rights or obligations under this Agreement (including interests or claims relating to this Agreement) without the prior written consent of the Company. Either party may assign this Agreement to any affiliate or subsidiary, without consent, upon prior written notice to the other party. The Company may assign this Agreement to any acquirer of all or substantially all of its assets.

12.5 Entire Agreement. This Agreement and the selections made by the Customer during the Checkout Process constitute the entire agreement between the parties with respect to their subject matter and supersede all other oral or written representations, understandings, or agreements relating to their subject matter. Each party represents that it is not relying on any representation or promise not set forth in this Agreement.

12.6 Severability. If any provision of this Agreement is found unenforceable, the provision will not affect the other provisions, but the provision will be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permitted the intent of the Company and the Customer set forth in this Agreement.

12.7 Waivers; Amendments. No delay or omission by the Company or the Customer in enforcing its rights or remedies under this Agreement will impair such right or remedy or be deemed to be a waiver of the rights or remedies. No waiver of any right or remedy under this Agreement with respect to any occurrence or event on one occasion will be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion. No amendment or waiver of this Agreement will be valid unless in writing and signed by both parties.

12.9 Governing Law; Jurisdiction; Venue. This Agreement is governed by the laws of Oregon. A party must bring and maintain any action arising out of this Agreement exclusively in any state or federal court located in Oregon. The Customer and the Company each hereby expressly and irrevocably submit to the personal jurisdiction of such courts for the purposes of any such action. The Customer and the Company each hereby represent to the other that such courts are a convenient forum.