IMPORTANT – READ CAREFULLY
Memorial Systems, LLC
MB ProBuild Software Subscription Services Agreement
This Agreement is between Memorial Systems, LLC, a corporation of the State of Ohio with offices at 301 North Hague Avenue, Columbus, OH 43204 (“Memorial Systems”) and you, the customer (“Customer”). This Agreement sets forth the conditions by which Memorial Systems will make its proprietary MB ProBuild software available to you via this website. Should you have any questions about this Agreement you should contact Memorial Systems.
(a) Authorized User means an employee or agent of Customer permitted to access the Site and use the Software and Documentation during the term of this Agreement for Customer’s internal business purposes relating to Customer’s business operations, has been issued a login ID and password, and has agreed to the terms and conditions of the end-user license agreement posted at the Site.
(b) Customer Data means Customer’s accounting, business, marketing, sales, and other data provided or submitted by Customer to the Site or generated in connection with accessing and using the Site and related Software.
(c) Documentation means all operator and user manuals, including on-line information and materials, relating to the use of the Site and Software provided or accessible to Customer in connection with this Agreement.
(d) Memorial Systems Confidential Information means all business or technical information of Memorial Systems that is not generally known to the public and that derives value from not being generally known, whether such information is disclosed orally or in writing. Confidential Information includes the Software accessible at the Site and any Documentation, compilations of information, methods, techniques, procedures, processes, databases, written descriptions, reports, designs, and plans, however recorded or embodied and may include trade secrets of Memorial Systems. Confidential Information also includes proprietary information that Memorial Systems may disclose to Customer when providing services to Customer pursuant to this Agreement. Memorial Systems Confidential Information shall not include information which is or becomes public knowledge through no fault of Customer or as Customer can demonstrate in writing was known prior to the disclosure thereof or as is obtained by Customer from a third party having an unrestricted and a legal right to disclose to others.
(e) Site means the mbprobuild.com web site for accessing and using the Software.
(f) Software means the MB ProBuild software accessible at the Site.
2. Access to and Use of the Site, Software, and Documentation.
Customer’s Authorized Users shall be permitted to access and to use the Site, Software, and Documentation during the term of this Agreement for Customer’s own lawful internal business purposes relating to Customer’s business operations.
3. Restrictions on Use of Site, Software, and Documentation.
Customer’s access to and use of the Site, Software, and Documentation is subject to the following restrictions:
(a) Customer may not use the Site, Software, or Documentation, or authorize or permit any other person or agent to use the Site, Software, or Documentation, for any purpose other than those expressly authorized under Section 2.
(b) Customer may not sublicense, transfer, or otherwise assign its rights to access and use the Site, Software, or Documentation to any third-party nor allow any third-party to access or use the Site, Software, or Documentation, except as expressly provided in this section. If Customer sells all or substantially all of the assets relating to Customer’s business operations, Customer may assign Customer’s rights under this Agreement to continue using the Site, Software, and Documentation so long as (1) Customer obtains Memorial Systems’s prior written consent to the assignment, which shall not be unreasonably withheld; and (2) the acquirer of Customer’s assets agrees in writing to be bound by the terms and conditions of this Agreement.
(c) Customer may not attempt to duplicate or reverse engineer the Software for any reason or to access or use the Site, Software, or Documentation to build or support, and/or assist a third party in building or supporting, a competitive site and/or software.
(d) Customer shall permit only Authorized Users to access and use the Site, Software, and Documentation pursuant to the end-user agreement posted at the Site. Authorized Users shall not share their login IDs or passwords with anyone.
4. Ownership of Site, Software, and Documentation.
Memorial Systems retains all right, title, and interest in and to the Site, Software, and Documentation in all forms and all copies and modifications of the Site, Software, and Documentation, including all worldwide rights to patents, copyrights, trademarks, and trade secrets in or relating to the Site, Software, or related Documentation. Customer is not acquiring any right, title or interest, of any nature whatsoever in any Software or Documentation except the right to access and use the Site, Software, and Documentation as granted under Section 2.
5. Customer Responsibilities.
Customer shall be responsible for:
(a) obtaining any software required for access to and use of the Site, Software, and Documentation including any operating system software or third party applications software;
(b) modifying network settings or connections to permit communication with the Site and Software;
(c) issuing login IDs and passwords to Authorized Users of the Site;
(d) using reasonable efforts to protect login IDs and passwords and to prevent unauthorized access to or use of the Site, Software, and Documentation; and
(e) notifying Memorial Systems if Customer becomes aware of unauthorized access to or use of the Site, Software, or Documentation.
Customer is solely responsible for the content of any data and for data transmissions to and from the Site. Customer is also solely responsible for the access to and use of the Site, Software, and Documentation by Customer’s employees or agents that Customer permits to access and use the Site, Software, and Documentation. Customer represents and warrants that its users:
(a) will not use the Site or Software in a manner that is prohibited by any law or regulation or to facilitate the violation of any law or regulation; and
(b) will not violate or tamper with the security of the Site or Software.
6. Data Ownership.
Customer retains all right, title, and interest in and to Customer Data and other data entered and collected in conjunction with Customer’s access to and use of the Site and Software.
Customer grants to Memorial Systems a non-exclusive, non-transferable, non-sublicensable license to use, copy, store, modify, and display Customer Data solely to the extent necessary to provide Site and Software subscription services to the Customer.
7. Data Protection and Security.
(a) Customer is responsible for the accuracy, quality, integrity, and reliability of Customer Data.
(b) Memorial Systems shall not knowingly use, edit, or disclose Customer Data;
(c) Memorial Systems shall use reasonable efforts to maintain the security and integrity of Customer Data during transmission and when stored at the Site but does not warrant or guarantee that Customer Data will not be subject to unauthorized access or disclosure and does not accept responsibility for any loss or damage arising from breaches, errors, omissions, or interruptions in data transmissions or data storage.
8. Software Fees and Payments.
In consideration of the rights to access and use the Site, Software, and Documentation, Customer agrees to pay subscription fee(s) to Memorial Systems. Memorial Systems and Customer shall agree in writing on the fee(s) and payment schedule prior to the start of Customer’s access to the Site, Software, and Documentation, and any first fee payment becoming due.
(a) Memorial Systems warrants that the Site shall be operational and available for use by Customer ninety-nine (99%) of all contracted periods, and that during such time the Software will conform in all material respects to the Documentation for the current version of the Software.
MEMORIAL SYSTEMS DOES NOT WARRANT OR REPRESENT THAT THE SITE AND SOFTWARE WILL BE ERROR-FREE, THAT THE SITE AND SOFTWARE SERVICES WILL OPERATE UNINTERRUPTED, OR THAT THE SITE AND SOFTWARE WILL MEET CUSTOMER’S SPECIFIC NEEDS. MEMORIAL SYSTEMS MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
THE WARRANTIES SPECIFIED IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. MEMORIAL SYSTEMS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE, OR ANY WARRANTY OF NON-INFRINGEMENT. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH ACCESSING THE SITE AND WITH USING THE SOFTWARE.
10. Exclusive Remedies for Breach of Warranty.
If any of the warranties specified in Section 9 with respect to Software are breached, the following terms shall apply:
(a) Customer shall promptly notify Memorial Systems of the breach and any associated details reasonably requested by Memorial Systems. For a Site or Software non-conformance breach, Customer shall cooperate with Memorial Systems in re-creating the conditions that existed at the time the Site or Software failed and shall provide a set of input capable of repeating the alleged error and a description of the occurrence and operating conditions under which it appeared, if reasonably requested by Memorial Systems.
(b) Memorial Systems shall diligently and in good faith attempt to correct the reported breach. For a Site or Software non-conformance breach, Memorial Systems shall correct the reported non-conformance by repairing or modifying the Site and/or Software within a commercially reasonable period of time.
(c) In the event Memorial Systems is unable to correct any warranty beach, Customer’s sole remedy shall be payment of liquidated damages not to exceed the amount of one-half of the Subscription Fees paid by Customer during the preceding twelve (12) months.
(d) Memorial Systems’s obligations in this section are limited to identifiable and reproducible errors.
THE FOREGOING REMEDIES ARE EXCLUSIVE AND WILL BE CUSTOMER’S SOLE REMEDIES WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATING TO ANY BREACH OF WARRANTY OR OTHER FAILURE OF THE SITE OR SOFTWARE TO OPERATE AS INTENDED, WHETHER BASED IN CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE.
11. Limitation of Liability.
EXCLUSIVE OF THE LIQUIDATED DAMAGES PROVISION OF SECTION 10, THE LIABILITY OF MEMORIAL SYSTEMS WITH RESPECT TO THIS AGREEMENT INCLUDING ANY AND ALL CLAIMS WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED IN THE AGGREGATE THE TOTAL VALUE OF FIVE PERCENT (5%) OF ALL SUBSCRIPTION FEES PAID BY CUSTOMER FOR THE SOFTWARE AND DOCUMENTATION DURING THE PRECEDING TWELVE MONTHS. MEMORIAL SYSTEMS SHALL IN NO EVENT BE RESPONSIBLE FOR LOSSES OR DAMAGES OF ANY KIND RESULTING FROM ACCESS TO OR USE OF THE SITE, SOFTWARE, AND DOCUMENTATION, INABILITY TO ACCESS OR USE THE SITE, SOFTWARE, OR DOCUMENTATION, WORK STOPPAGE, LOSS, DISCLOSURE, OR BREACH OF CUSTOMER DATA, OR ANY DEFICIENCIES, DEFECTS, ERRORS, OR MALFUNCTIONS IN THE SITE, SOFTWARE, OR DOCUMENTATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE OF SOFTWARE, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer acknowledges that it may receive Memorial Systems Confidential Information during the term of this Agreement. Customer shall hold in strictest confidence and shall not use or disclose to any person or entity other than Customer’s employees and authorized agents any Memorial Systems Confidential Information previously or hereafter disclosed to Memorial Systems by Customer. Customer shall take precautions as necessary to safeguard Memorial Systems Confidential Information, including, but not limited to a) those taken by Customer to protect Customer’s own confidential information; and b) those which Memorial Systems may reasonably request from time to time. Customer shall notify Memorial Systems in writing if it becomes aware of any violation of this section.
13. Term and Termination.
Customer’s right to access and use the Site, Software, and Documentation shall be effective until terminated in accordance with this section.
(a) 90 Day Performance Guarantee. If at any time during the first 90 days of using the Software, Customer is dissatisfied with quality or performance of the Software and desires to cease use of the Software, the Agreement shall be terminated and Memorial Systems shall repay Customer for any fees paid by customer. Customer shall only be entitled to a single 90 day performance guarantee.
Invoicing and Payment. Unless otherwise agreed, Memorial Systems shall invoice Customer for fee payment(s). Memorial Systems shall have the right to change future subscription pricing and payment schedules by providing written notice of such pricing to Customer at least 30 days in advance of the end of any current term. All payments made under this Agreement shall be in U.S. dollars.
(b) Automatic Renewal. Absent termination under this Agreement, licensing terms shall automatically renew at the end of each term.
(c) Termination by Customer. Customer may terminate the license upon 30 days prior written notice to Memorial Systems. Termination shall not relieve Customer from its obligation to pay any and all fees owed by Customer under this Agreement.
(d) Termination by Customer in Event of Memorial Systems’s Bankruptcy. Customer may terminate this Agreement immediately if Memorial Systems files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
(e) Termination by Memorial Systems. Memorial Systems may terminate the license upon written notice to Customer if Customer breaches in any material respect any term or condition of this Agreement and fails to cure the breach:
(1) in the case of a breach of a payment obligation, within ten (10) days after receipt of written notice of the breach from Memorial Systems;
(2) in the case of any other breach under this Agreement, within thirty (30) days after receipt of written notice of the breach from Memorial Systems.
(f) Termination by Memorial Systems in Event of Customer’s Bankruptcy. Memorial Systems may terminate this Agreement immediately if Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
14. General Provisions.
(a) Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Ohio.
(b) Entire Agreement. This Agreement (including amendments as they may from time to time be mutually agreed upon, executed and incorporated herein) contains the full and complete understanding of the parties with respect to the subject matter hereof, and no waiver, alteration, or modification of any of the provisions hereof shall be binding unless in writing and signed by the parties to this Agreement. Neither the course of conduct between the parties nor trade usage shall act to modify or alter the provisions of this Agreement.
(c) Binding Effect. This Agreement is binding upon and inures to the benefit of the parties thereto, their legal representatives, agents, successors, and assigns.
(d) Waiver. If either party should waive or choose not to enforce any provision of this Agreement at one time, such waiver shall not bar subsequent enforcement of such provision at a later time.
(e) Enforceability. If any provision of this Agreement is declared or found to be illegal, unenforceable, or void, then both Memorial Systems and Customer shall be relieved of all obligations arising under such provision. If the remainder of this Agreement is capable of performance, it shall not be affected by such declaration or finding and shall be fully performed.
(f) Survival. The provisions of Sections 9, 10, 11, and 12 of this Agreement shall survive and continue in full force and effect notwithstanding the termination or expiration of this Agreement.
(h) Notices – Notices hereunder shall be delivered and be effective as follows: (i) written notice may be delivered in person or may be sent by courier, facsimile, express mail, or commercial equivalent, or postage prepaid or first class mail, addressed to the party as shown below and; (ii) written notice shall be effective on the date received.
To Memorial Systems:
Memorial Systems, LLC
301 North Hague Avenue
Columbus, OH 43204
Attn.: Jonathan Modlich