TERMS AND CONDITIONS OF USE TEXTURA CPM SYSTEM This document is a legal agreement ( Terms and Conditions ) between you and your organization and Textura Corporation ( Textura ) describing the terms and conditions applicable to Your use of the Site and Service (as defined herein). Please examine these Terms and Conditions carefully and understand their content fully before using the Site and Service. By using the Site and Service, You represent that (i) You have read and understand all of the provisions of these Terms and Conditions; (ii) You accept these Terms and Conditions on behalf of the Subscriber (as defined herein); and (iii) You have authority to contractually bind the Subscriber to these Terms and Conditions. A Subscriber must accept these Terms and Conditions through an individual with proper authority before it can authorize its Representatives to use the Site and Service (as such terms are defined herein). These Terms and Conditions and Privacy Policy (as defined herein) apply equally to both Subscribers and its Representatives. Each Subscriber is responsible for all conduct of its Representatives in using the Site or Service. These Terms and Conditions also include Textura s Privacy Policy and all pricing information referenced herein. If You are a subscriber or user of any Other Services (as defined herein), You are also subject to the terms and conditions governing each such service. DEFINITIONS Other Services means other services that Textura or any of its subsidiaries offers, including, but not limited to, GradeBeam, Greengrade, PlanSwift, the Textura PQM System, and Submittal Exchange. Representative means any representative of a Subscriber, whether employee, agent, independent contractor, subcontractor, or otherwise, whom Subscriber authorizes to access or use the Service on the Subscriber s behalf. Service means the Textura Construction Payment Management ( CPM ) System. The Site means the website http://www.texturacorp.com through which You access the Service. A Subscriber is an entity who pays Textura Fees (as defined herein) for use of the Service. You means any end user of the Site and Service. You includes both a Subscriber and its Representatives. LICENSE Subject to these Terms and Conditions, Textura grants to Subscriber a limited, non-exclusive, non-transferable license ( License ) to use the Site and Service to manage the construction project payment process. All rights not expressly granted to Subscriber are reserved by Textura. 1
PRICING AND PAYMENT Subscriber is subject to and agrees to pay the fees set forth in the SCHEDULE OF PRICING AND FEES (the Fees ) available on the Site. Subscriber hereby gives Textura permission to automatically deduct subcontractor transaction fees from payments processed through the Site and Service and for Textura to collect subcontractor usage fees, subcontractor deferral fees, and subcontractor service fees by ACH (as defined herein) debit or credit card payment, in accordance with the schedules set forth in the SCHEDULE OF PRICING AND FEES. Textura reserves the right to change the Fees with three months prior notice. Fees applicable to projects already in progress on the Site or Service at the time of a change in the Fees will continue, through completion of the project, at the level of Fees applicable to the project as of the date the project commenced. IP NOTICE The Site and Service are proprietary to Textura and include information that is the property of Textura and its licensees/users. The Site, its content, the Service, and all proprietary information of Textura or its licensors on the Site (collectively Contents ) are protected by the copyright and/or trade secret laws of jurisdictions throughout the world. Unless You receive the prior written consent from Textura, You shall not copy the Contents or use the Contents other than as permitted by Textura, or disclose the Contents to others. Textura and Textura Construction Payment Management are registered trademarks of Textura. Textura has registered its trademarks in the United States and in countries throughout the world. The Site and the operations thereof are covered under U.S. patents and patent applications, as well as patents and patent applications pending in other countries. A non-exhaustive list of Textura s patents and patent applications is available at this link. Textura retains all right, title and interest in and to the Site and the Service. Your use of the Site and Service does not grant or confer any rights to You, by license or otherwise, in or to the Site and/or Service other than the licensed rights expressly granted herein. You acknowledge that the software of the Service may contain copyrighted material, trade secrets, or other proprietary information which belongs to Textura, or is licensed by Textura from third parties, or may embody patented subject matter owned by Textura or such third parties. USER DATA Except as otherwise provided herein, Textura does not own any data, information or material that You submit to the Site in the course of using the Service ("User Data"). Subscriber, not 2
Textura, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of all User Data, and Textura shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data. Notwithstanding the foregoing, Textura reserves the right to use User Data as set forth in these Terms and Conditions. USE RESTRICTIONS AND CONDUCT If You, directly or indirectly, own, manage, participate or otherwise engage in or have any connection with (as an employee, representative, agent or otherwise) any business in the United States or any other foreign country that provides any product or service that is similar to those provided by Textura, You are not permitted to and shall not access or use the Service without prior written consent of Textura. Except as otherwise expressly authorized herein, You shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party or use any Service for third party training, commercial time sharing, rental or service bureau use in any way; (b) modify, copy, distribute, transmit, display, reproduce, disassemble, decompile, reverse engineer, or make derivative works based upon any portion of the Site or Service; (c) create Internet "links" to the Site or "frame" or "mirror" any portion of the Site or Service on any other server or wireless or Internet-based device; or (d) access the Service or Site in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service or Site. You shall comply with all applicable international, federal, state and local laws and regulations, including, without limitation, laws and regulations administered by the U.S. Office of Foreign Asset Control, in Your use of the Site. You shall not access or attempt to access password protected, secure, or non-public areas of the Site without the prior written consent of Textura. You shall be solely responsible for Your actions, User Data and any other contents of Your transmissions to the Site. You shall not transmit any materials or information to the Site or Service that infringes on any copyright or other proprietary rights of any other person or entity. You shall not impersonate any person or entity or falsely state or otherwise misrepresent Your identity or affiliation with any person or entity. You shall not post or use the Site or Service to transmit: (a) any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, or otherwise objectionable information of any kind, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or foreign law; (b) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial or non-commercial communication except as otherwise expressly permitted by Textura; or (c) any information or software which contains a virus, Trojan horse, worm, malware or other harmful component. 3
You shall not use the Service in any manner that violates these Terms and Conditions. You shall not use and shall not authorize, cause, or enable others to use the Site or Service for any unlawful purpose. YOUR CONFIDENTIALITY AND SECURITY OBLIGATIONS A. Obligations With Regards to Textura s and Your Own Confidential Information. You agree to maintain and protect the confidentiality of the Site and Service and will not disclose to third parties any aspect of the Site or Service, including related software or their contents, or use the Site or Service for any purpose other than authorized herein. You understand that the Site, Service, the Third Party Software (as defined herein), Your user name and password, the Subscriber accounts, names and passwords, and any other information disclosed by Textura to Subscriber shall be considered confidential information ("Confidential Information"). You agree: (a) to not disclose any Confidential Information to any third party without the prior written consent of Textura; (b) to only disclose the Confidential Information to Subscribers, Representatives, employees, and such third parties approved in writing by Textura who are under written obligations of confidentiality with respect to the Confidential Information that are no less restrictive than those contained herein (it being understood that You shall be liable for any failure on the part of any such Representative, employee or third party to comply with these Terms and Conditions to the same extent as if such Representative, employee or third party had been parties hereto); (c) to use the Confidential Information solely in accordance with the terms of these Terms and Conditions; and (d) to protect the Confidential Information from unauthorized disclosure or use. You agree to keep sole control and not give the usernames, passwords, and/or PINs to anyone who is not an authorized Representative of Subscriber. You are responsible for any activity that occurs under Your account as a result of Your failure to maintain the security and confidentiality of the Confidential Information, including but not limited to all Subscribers usernames, PINs, and passwords. You agree to notify Textura immediately of any unauthorized use of Your account or password or any other breach of security. B. Obligations With Regards to Submitter Information and Information From Other Services. Subscribers or users of Other Services may submit to another Subscriber (a Receiving Subscriber ) highly sensitive and confidential business and financial information through this Service or Other Services that the Receiving Subscriber uses ( Confidential User Information ). A Receiving Subscriber agrees (1) not to use Confidential User Information for any purpose other than to complete the construction payment management process or for purposes permitted by Other Services used by Receiving Subscriber; (2) to disclose or allow disclosure of 4
Confidential User Information (a) internally, only to those employees of Receiving Subscriber who need access to the information for the purpose of completing the construction payment management process or for purposes permitted by Other Services used by Receiving Subscriber; and (b) externally, only to entities or individuals to the extent necessary to allow Receiving Subscriber to complete the construction payment management process, or to such other users of Other Services who have a right to receive such information in their use of such Other Services; (3) not to otherwise disclose Confidential User Information to third parties, except as expressly permitted in these Terms and Conditions or the terms and conditions governing Other Services used by Receiving Subscriber; and (4) to take such precautions to protect the Confidential User Information as Receiving Subscriber would take to protect its own information. C. Exceptions to Confidentiality Obligations. Your confidentiality obligations under this section will not apply to any information which You can demonstrate (a) was in the public domain prior to it being communicated to You or becomes part of the public domain through no fault of Your own after the disclosure of the information to You; (b) was already in Your possession without an obligation of confidentiality; or (c) is disclosed pursuant to the order of a court of competent jurisdiction, or any order of any governmental agency, provided that You first give notice to Textura of such an order and an opportunity to prevent such a disclosure. D. Remedies for Breach. You acknowledge that a breach of this section will result in irreparable and continuing harm to Textura for which there will be no adequate remedy at law and, therefore, Textura will be entitled to appropriate equitable relief. This section shall survive the termination of these Terms and Conditions and remain in effect until the information is no longer confidential. Upon termination of these Terms and Conditions or Textura's request, You shall purge all Confidential Information from Your computer system(s) and at Textura's option, either (a) destroy all Confidential Information in Your possession, or (b) return all Confidential Information in Your possession to Textura. Within ten (10) days of termination, You or an authorized officer of Your company shall certify in writing that all such Confidential Information has been purged from Your computer system(s) and either destroyed or returned to Textura. TERM AND TERMINATION These Terms and Conditions are effective until terminated by either You or Textura, unless automatically terminated as set forth herein. You may terminate these Terms and Conditions at any time by permanently discontinuing Your use of the Site. Upon termination for any reason, You must destroy all materials obtained from the Service and Site and all copies thereof (excluding Your User Data). 5
TERMINATION FOR VIOLATION Textura reserves the right to terminate these Terms and Conditions, including, but not limited to, the License, and Your use of the Site or Service for violation by Subscriber or any of its Representatives of any of the terms of these Terms and Conditions. ELECTRONIC PAYMENT You shall comply with and be bound by the Automated Clearing House ( ACH ) Operating Rules and/or any other applicable international electronic funds transfer laws and regulations in Your use of the Site or Service. You shall not initiate entries through the ACH system or other electronic payments system in violation of any applicable international, federal, state, or local laws and regulations, including, without limitation, laws and regulations administered by the U.S. Office of Foreign Asset Control. You hereby authorize Textura to act as Your data processing agent for the purpose of transmitting credit and/or debit entries to your financial institution for its processing and transmittal through the ACH system or other applicable electronic payments system. You acknowledge and agree that these Terms and Conditions will serve as a pre-authorized debit agreement under applicable law. You also agree to execute any further documentation reasonably requested by Textura to enable Textura to transmit credit and/or debit entries to Your financial institution as provided in this paragraph. You acknowledge that payments made through the ACH system or other applicable electronic payments system in connection with the Site or Service may only be made to domestic bank accounts, and You therefore agree to maintain and use only domestic bank accounts in connection with Your use of the Site or Service. You acknowledge that all payments made through the Site will be electronic payments, and You agree to send and/or receive any such payments electronically. You are responsible for providing complete and accurate contact and payment information necessary to effect electronic payments between parties using the Site or Service. Textura is not responsible for failure by any User to accurately and completely enter contact or payment information, and Textura makes no warranties or representations as to the accuracy or completeness of such information. You are responsible for updating the contact and payment information whenever necessary, including, without limitation, bank account information, organization information, and user information. If Textura receives a fine or forfeiture as a result of Your failure to properly maintain or update Your contact or payment information, You agree to indemnify Textura for the amount of such fine or forfeiture. Textura is not responsible for any participant not receiving payment due to a failure by any Subscriber to maintain and/or update accurate contact or payment information. 6
Subscriber shall ensure that electronic credits and debits are authorized to be made on its bank account and shall maintain sufficient funds in its bank account for payment of the Fees. LIEN WAIVERS Subscribers may use the Site and Service for the electronic exchange of conditional and unconditional lien waivers. TEXTURA MAY RELEASE UNCONDITIONAL LIEN WAIVERS ONLY AFTER PAYMENT TO WHICH THE WAIVER(S) RELATE HAS BEEN COMPLETED (AS DEFINED BELOW) TO THE RELEASING SUBSCRIBER (PAYEE), UNLESS OTHERWISE EXPRESSLY SPECIFIED IN THE PAYOR S CONTRACT WITH THE RELEASING SUBSCRIBER (PAYEE) AND THEN, ONLY IF BOTH EXPRESSLY INSTRUCTED BY THE PAYOR AND AGREED TO BY PAYEE. TEXTURA HAS THE RIGHT TO DEMAND REASONABLE VERIFICATION OF THE EXISTENCE OF SUCH CONTRACTUAL PROVISIONS. A payment is Completed 72 hours (excluding weekends) after payment instructions have been transmitted to payor s bank unless Textura receives a Notice of Non-Payment (as defined herein) within 60 hours (excluding weekends) after transmission of such payment instructions. A Notice of Non-Payment is a written notice to Textura, either from the releasing Subscriber or the ACH bank network, that payment was not received by releasing Subscriber after payment instructions were transmitted to the payor s bank. IF TEXTURA TIMELY RECEIVES A NOTICE OF NON-PAYMENT, IT WILL NOT RELEASE THE UNCONDITIONAL LIEN WAIVER TO WHICH THE NOTICE OF NON-PAYMENT RELATES UNTIL IT RECEIVES CONFIRMATION THAT PAYMENT HAS BEEN RECEIVED BY THE RELEASING SUBSCRIBER. TEXTURA IS NOT RESPONSIBLE FOR RELEASING AN UNCONDITIONAL LIEN WAIVER PRIOR TO A RELEASING SUBSCRIBER'S ACTUAL RECEIPT OF PAYMENT IF, BEFORE THE LIEN WAIVER WAS RELEASED, THE APPLICABLE PAYMENT WAS "COMPLETED" AS DEFINED HEREIN. TEXTURA IS NOT RESPONSIBLE FOR PAYMENT OF FUNDS ONCE INSTRUCTIONS HAVE BEEN TRANSMITTED. RELEASING SUBSCRIBERS AGREE TO PROMPTLY CARRY OUT SUCH ACTIONS AS MAY BE NECESSARY FOR THE PAYMENT INSTRUCTIONS TO BE PROCESSED BY THE RELEASING SUBSCRIBER S BANK, NOT TO ALTER OR DELETE ANY INFORMATION CONTAINED IN THE PAYMENT INSTRUCTIONS, AND NOT TO OTHERWISE IMPEDE OR UNNECESSARILY DELAY THE PROCESSING OF THE PAYMENT INSTRUCTIONS BY THE BANK WITHOUT WRITTEN NOTIFICATION TO TEXTURA WITHIN 24 HOURS OF THEIR HAVING DONE SO. TEXTURA IS NOT RESPONSIBLE FOR ENSURING THAT THE RELEASING SUBSCRIBER COMPLIES WITH THESE REQUIREMENTS. SUB-TIER LIEN WAIVERS SUBMITTED USING THE SITE AND SERVICE BY SUBSCRIBERS WHO ARE NOT USING THE SYSTEM FOR INVOICING AND PAYMENT WILL BE RELEASED IMMEDIATELY. TEXTURA IS NOT RESPONSIBLE FOR ENSURING THAT THESE SUBSCRIBERS ARE PAID. 7
This section does not apply to projects located in Canada. NO AGENCY In all transactions and processes carried out using the Site and Service, Textura is and acts as a neutral third party, and is not an agent of or affiliated with any party using the Site and Service. Neither the use of the Site and Service nor any provision of these Terms and Conditions creates an agency relationship with Textura or between Subscribers or Subscriber Representatives of the Site and Service. TAXES Payments made by Subscriber for the use of the Site and Service pursuant to these Terms and Conditions do not include any taxes or duties payable in respect of the services provided hereunder in the jurisdiction where the payment is either made or received. Any such taxes are the sole responsibility of Subscriber. To the extent that any such taxes or duties are payable or paid by Textura, Subscriber agrees to indemnify and pay to Textura promptly upon demand the amount of such taxes or duties, and any penalties, interest, costs, and damages related thereto, in addition to any fees owed for the use of the Site and Service pursuant to these Terms and Conditions. Textura shall have the right to add such amounts to any invoice issued to Subscriber. If Subscriber has obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, Subscriber may provide Textura with any such exemption information. Upon receipt of such exemption information, Textura will use reasonable efforts to provide such invoicing documents as may enable Subscriber to obtain from any relevant revenue authority a refund or credit for the amount so paid if such a refund or credit is available. ELECTRONIC SIGNATURES You agree to be legally bound by the electronic signatures generated through and utilized by the Site and Service. If notarization of any documents is required, You shall accept electronic notarization of documents provided through the Site or Service. You shall not contest the validity of any e-signature or e-notarization on the basis that the signature or notarization is performed electronically. You agree that electronic signatures are a valid form of execution of contracts and other documents. You also agree that any such contracts and documents signed electronically by other participants using the Site or Service, including, without limitation, all invoices, sworn statements, change orders, and lien waivers, are validly executed. You agree that each Representative designated by You as a signer in the Site or Service is authorized to sign on behalf of You and legally bind You. Textura may use any suitable electronic signature service, including, without limitation, the services provided by AlphaTrust Corporation. Textura is not responsible for the services 8
provided by any third party electronic signature service provider and such services may be provided under a separate agreement. You agree to use the security required by the electronic signature service provider, such as usernames, passwords, and/or PINs. SECURITY AND CONFIDENTIALITY Textura takes security seriously and will use commercially reasonable efforts, including the use of usernames, passwords, and encryption, to keep User Data secure and confidential from third parties that are not using the Site or Service. HOWEVER, TEXTURA DOES NOT GUARANTEE THAT IT WILL NOT BE THE SUBJECT OF A SECURITY BREACH AND MAKES NO WARRANTY THAT INFORMATION GIVEN TO TEXTURA AND/OR STORED IN ANY TEXTURA SYSTEM (INCLUDING, WITHOUT LIMITATION, USER DATA) WILL BE COMPLETELY SECURE. Textura will use commercially reasonable efforts to keep all payment information (including any credit account information and bank account numbers) provided by Subscriber confidential from third parties and from other participants using the Site or Service. You acknowledge and agree that information that you provide to Textura, including, but not limited to, User Data, may be stored by Textura in a location other than the jurisdiction in which You use the Site and Service. PRIVACY POLICY Textura understands that privacy is an important concern of our Subscribers. Textura s privacy policy is available at this link ( Privacy Policy ). The Privacy Policy does not necessarily address these issues as they may relate to other Textura sites, or those of our business units and/or affiliates except as provided therein. In addition to permitted uses contained within the Privacy Policy, Textura may preserve and/or disclose such User Data and/or other information transmitted by You through the Site or Service if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms and Conditions; (c) respond to claims that the information violates the rights of You or third parties; or (d) protect the rights, property, or personal safety of Textura, its employees, its customers, or the public. Textura reserves the right to change the Privacy Policy at any time, without notice. Any change may apply retroactively to information we previously gathered. If You have additional questions not covered here, please email us at customerservice@texturacorp.com. DISCLAIMER OF WARRANTIES NONE OF TEXTURA, ITS AFFILIATES OR SUBSIDIARIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEE AGENTS, SHAREHOLDERS OR REPRESENTATIVES MAKES ANY 9
REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE, THE SITE, THIRD PARTY SOFTWARE, SUPPORT SERVICES OR THIRD PARTY SERVICES. WITHOUT LIMITING THE FOREGOING, TEXTURA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY THAT (a) THE USE OF THE SITE, SERVICE, THIRD PARTY SOFTWARE, SUPPORT SERVICES OR THIRD PARTY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (b) THE SITE, SERVICE, SUPPORT SERVICES, THIRD PARTY SOFTWARE OR THIRD PARTY SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (c) ANY STORED DATA, INCLUDING, WITHOUT LIMITATION, USER DATA, WILL BE ACCURATE OR RELIABLE, (d) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE, SERVICE, THIRD PARTY SERVICES, OR THIRD PARTY SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (e) ERRORS OR DEFECTS WILL BE CORRECTED, OR (f) THE SITE, SERVICE, THIRD PARTY SERVICES, THIRD PARTY SOFTWARE OR THE SERVER(S) THAT MAKE ANY SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT THE SITE AND ITS CONTENTS ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TEXTURA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE SITE, ITS CONTENTS AND THE USE THEREOF, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, OR TITLE. Some states do not allow the disclaimer or limitation of warranties, so the disclaimers set forth above may not apply to You. LIMITATION OF LIABILITY IN NO EVENT SHALL TEXTURA, ITS AFFILIATES OR SUBSIDIARIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, REPRESENTATIVES, SUPPLIERS OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, COMPENSATORY, SPECIAL, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES EVEN IF MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE OR OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE OR PERFORMANCE OF THE SITE AND/OR ANY MATERIALS, PRODUCTS OR SERVICES AVAILABLE AT THE SITE. NONE OF TEXTURA, ITS AFFILIATES OR SUBSIDIARIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEE AGENTS, SHAREHOLDERS OR REPRESENTATIVES SHALL HAVE ANY LIABILITY WHATSOEVER FOR OR IN CONNECTION WITH THE ACTIONS OR OMISSIONS OF ANY SUBSCRIBER, USER, OR REPRESENTATIVE, THEIR USE OF THE SITE OR SERVICE, OR THEIR FAILURE TO COMPLY WITH APPLICABLE LAWS, INCLUDING, WITHOUT LIMITATION, APPLICABLE CONSTRUCTION LIEN LEGISLATION. You specifically acknowledge and agree that Textura is not liable for any defamatory, offensive or illegal conduct of any Subscriber or Representative of the Site or Service. 10
If You are dissatisfied with the Site or any materials contained in the Site, or with these Terms and Conditions, Your sole and exclusive remedy is to discontinue use of the Site and Service. If, notwithstanding these Terms and Conditions, Textura is found to be liable to Subscriber for compensable damages relating in any way to Your use of the Site or Service, You agree that in no event shall Textura s aggregate liability exceed the greater of (a) the total of any Fees paid by Subscriber to Textura in the six months immediately prior to the date on which the claim is made against Textura or (b) US $100. SUBSCRIBER AND USER WARRANTIES AND INDEMNITY You represent and warrant that all information submitted by You through the Site or Service is accurate and complete, and that You have taken reasonable steps to ensure the accuracy and completeness of such information. You agree to indemnify, defend, and hold harmless Textura, its officers, directors, employees, agents, shareholders, representatives, suppliers and content and service providers from and against all losses, expenses, damages and costs, including reasonable attorneys fees, resulting from the information submitted by You through the Site or Service, any violation of these Terms and Conditions, or any activity related to the use of the Site or Service by Subscriber or any User or anyone accessing this Site or Service from Your Internet account. INDEPENDENT CONTRACTOR You acknowledge and agree that no relationship other than that of independent contractor is established between You and Textura by either use of the Site or Service or by agreement with these Terms and Conditions. You are not an employee, agent, joint venturer or partner of or with Textura, and neither use of the Site or Service nor agreement with these Terms and Conditions create any agency between You and Textura. No party hereto shall represent to any third party that it is the employee, agent, joint venturer or partner of the other or make any representation or warranty on behalf of or in the name of the other or conduct any business or accept payment or service of legal process for the other. THIRD-PARTY LINKS AND SERVICES Textura may provide links to websites operated by third parties. Textura makes no representations or warranties whatsoever about any third party websites that You may access through this Site. Textura is not responsible for the privacy practices or the content of such websites. Textura prohibits the framing of any materials available through the Site. Textura reserves the right to disable any unauthorized frames and specifically disclaims any responsibility for the contents of any other websites linked to the Site. The Service and/or Site may contain some Third Party Software (as defined herein) for which Textura has obtained the appropriate licensing rights, if applicable. "Third Party Software" means third party computer programs provided to You or electronic access to computer programs provided to You under these Terms and Conditions in connection with the Service. 11
Your use of the Third Party Software in connection with the Service and/or Site shall be subject to the terms and conditions set forth herein and any other conditions placed on the use of the Third Party Software by its owner. You also acknowledge that the owner of such Third Party Software is the sole and exclusive owner of all right, title, and interest in and to the Third Party Software, any modifications or improvements made thereto, derivative works made therefrom, and all related materials, documentation, know-how, and intellectual property related thereto. ABOUT THESE TERMS AND CONDITIONS Textura reserves the right to change, alter or modify these Terms and Conditions for any reason at its sole discretion at any time without prior notice. When we do so, changes in these Terms and Conditions will be posted on the Site and will be effective immediately. We recommend that You check these Terms and Conditions on a regular basis. Textura may modify, suspend, or discontinue the Service and/or the Site in its sole discretion at any time without prior notice. Textura shall not be liable for any modification, suspension, or discontinuance of the Site and/or Service. CHOICE OF LAW These Terms and Conditions, including, without limitation, the Privacy Policy, shall be governed by and construed in accordance with the laws of the United States of America and the State of Illinois, without giving effect to any principles of conflicts of law. For projects located in Canada, these Terms and Conditions, including, without limitation, the Privacy Policy, shall be governed by and construed in accordance with the laws of Canada and the Province of Ontario, without giving effect to any principles of conflicts of law. It is the express wish of the parties that these Terms and Conditions and all related documents be drawn up in English. C est la volonté expresse des parties que la présente convention ainsi que tous les documents y afférents soient rédigés en anglais. The provisions of this section shall survive termination of these Terms and Conditions. JURISDICTION AND VENUE By agreeing to these Terms and Conditions, You consent to jurisdiction in the State of Illinois. Any dispute related in any way to Your use of the Site or Service shall be venued in the state courts located in Lake County, Illinois or the United States District Court for the Northern District of Illinois. For projects located in Canada, by agreeing to these Terms and Conditions, You consent to jurisdiction in the Province of Ontario. Any dispute related in any way to Your use of the Site or Service shall be venued in the courts located in Toronto, Ontario. SEVERABILITY 12
If any provision, or portion thereof, of these Terms and Conditions, including, without limitation, the Privacy Policy, shall be deemed unlawful, void, or for any reason unenforceable, then that provision or portion thereof shall be deemed severable from the remainder and shall not affect the validity and enforceability of any remaining provisions. NO WAIVER The failure of Textura to enforce any right or provision in these Terms and Conditions shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Textura in writing. Any waiver by Textura to enforce any right or provision in these Terms and Conditions shall not constitute a subsequent or future waiver of Textura s rights to enforce these Terms and Conditions to the fullest extent. ASSIGNMENT You may not assign these Terms and Conditions without the prior written approval of Textura. Any purported assignment in violation of this section shall be void and unenforceable. LIMITATIONS PERIOD You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. USER COMMENTS, FEEDBACK, AND SUBMISSIONS All comments, feedback, postcards, suggestions, ideas, and other information disclosed, submitted, conveyed or offered to Textura on or by the Site or Service or otherwise disclosed, submitted or offered in connection with Your use of the Site or Service (collectively, "Comments") shall be and remain Textura s property. Such disclosure, submission or offer of any Comments shall constitute an assignment to Textura of all worldwide rights, titles and interests in all copyrights and other intellectual properties in the Comments. Thus, Textura will own exclusively all such rights, titles and interests and shall not be limited in any way in its use, commercial or otherwise, of any Comments. Textura is and shall be under no obligation (a) to maintain any Comments in confidence; (b) to pay to Subscriber or any Representative compensation for any Comments; or (c) to respond to any Comments. You agree that no Comments or any other submission submitted by You to the Site or Service will violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right(s). You further agree that no Comments or other submission submitted by You to the Site or Service will be or contain libelous or otherwise unlawful, abusive or obscene material. You are and shall remain solely responsible for the content of any Comments You make. 13
You hereby consent that Textura may record and/or monitor any calls that You make to Textura s client services department and/or that Textura s client services department makes to You. INTERNET DELAYS TEXTURA S SERVICE AND/OR AVAILABILITY OF THE SITE OR SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TEXTURA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. FORCE MAJEURE Textura will not be held liable for the failure to perform its obligations under these Terms and Conditions if such failure is occasioned by a contingency beyond Textura s reasonable control, including, without limitation, acts of war, labor difficulties, riots, fire, flood, hurricane, windstorm, governmental laws, acts or regulations (including the inability to obtain any necessary permits), or shortages of materials; provided, however, that such relief will only continue for so long as the force majeure condition exists. LOCAL LAWS AND EXPORT CONTROL If You use the Service from outside the United States, You are solely responsible for compliance with all applicable laws, including, without limitation, export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government. NOTICE Where required, Textura may give notice to You by a general posting on the Site or by electronic mail to Your e-mail address if on record with Textura. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after posting to the Site or twelve (12) hours after sending (if sent by electronic mail). You may give notice to Textura by electronic mail to the address below. If You have any questions about these Terms and Conditions, the practices of the Site or Service, or Your dealings with Textura, please e-mail to customerservice@texturacorp.com. COMPLETE AGREEMENT These Terms and Conditions comprise the entire agreement between You and Textura and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Unless expressly agreed in a writing signed by Subscriber and Textura, any terms and warranties 14
offered by any other individual, agent or entity, including resellers, that are not expressly stated in these Terms and Conditions or that contradict these Terms and Conditions are null and void. The Site s content is maintained by Textura Corporation located at 1405 Lake Cook Road, Deerfield, IL 60015. We can be reached by e-mail at: customerservice@texturacorp.com. 15