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title: Enterprise Terms & Conditions
---

# Enterprise Terms & Conditions

<div className="pill">Updated December 3, 2020</div>

## BUILDBUDDY SUBSCRIPTION LICENSE AGREEMENT

### v2020-12-03

This License Agreement (“Agreement”) is made between ITERATION, Inc. with a place of business at 2501 Ash St #R3, Palo Alto, CA 94306 (“Company”), and the Customer listed below (“Customer”). This Agreement includes and incorporates the order form signed by the parties hereto (the “Order Form”) for Customer’s subscription to that certain licensed Company software described on such Order Form (the “Product”). The “Effective Date” of this Agreement is the date of Customer’s initial Order Form or the date of Customer’s initial access to the Services, whichever is earlier. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

## 1. SUBSCRIPTION

### 1.1 Deployment Model.

Company shall make the Services available to Customer via a Company Hosted Deployment or a Customer Hosted Deployment, as indicated on the Order Form. “Company Hosted Deployment” means the Product is installed on a web-based platform that is hosted by Company or a third-party hosting facility designated by Company. “Customer Hosted Deployment” means the Product is installed by or for Customer at Customer’s premises or on a Customer-controlled server within a third-party data center.

### 1.2 Usage.

Upon mutual execution of the Order Form, Company will: (a) for Company Hosted Deployment, provide Customer with access to the Product and Support Services (defined below) that are described in the Order Form (collectively, the “Services”); or (b) for Customer Hosted Deployment, provide Customer with a license key to access the Services. Customer understands and agrees that: (x) each User (defined below) constitutes one individual and log-on credentials for each User may not be shared; (y) the Services may be limited to use by a specific business unit or department of Customer as described in the Order Form (the “Scope of Use”); and (z) only the specified number and category of Users specified on an Order Form shall be provisioned by Customer. “User" means each individual end-user (person) of Customer and/or its Affiliates (including, without limitation, employees, agents or consultants thereof) with access to the Services hereunder. “Affiliate” means any entity(ies) controlling, controlled by, and/or under common control with a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity.

## 2. LICENSE AND SUPPORT

### 2.1 License Grant.

or Company Hosted Deployment, Customer shall have the right to access, use, and configure the Product during the Term subject to the defined Scope of Use and described in the applicable Order Form. For Customer Hosted Deployment, Company grants to Customer, during the Term only, a fee-bearing non-exclusive, revocable, non-transferable, non-sublicensable license to install use and modify the Product in accordance with the defined Scope of Use described in the applicable Order Form.

### 2.2 Third Party Software.

The Services may include licensed software from third parties (“Third Party Software”) that is subject to its own terms and conditions. To the extent required by the license that accompanies the Third Party Software, the terms of such license shall prevail with respect to the applicable Third Party Software, over the terms and conditions described in this Agreement.

### 2.3 Support Services.

Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in accordance with Company’s standard practice (the “Support Services”). Company reserves the right to make modifications to the Support Services from time to time provided that such modifications do not materially reduce the Support Services in effect as of the Effective Date and that Company agrees to use commercially reasonable efforts to notify Customer of any material modifications to the Support Services.

## 3. RESTRICTIONS AND RESPONSIBILITIES

### 3.1 Customer Restrictions.

Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data owned and provided by Company related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

### 3.2 U.S. Government Rights; Export.

Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. Customer acknowledges and agrees that the Product is subject to all applicable export control and economic sanctions laws and regulations, including, without limitation, those of the United States Government. Customer shall strictly comply with all applicable export control and economic sanctions laws and regulations related to the Product, including, without limitation, U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, the economic sanctions codified in 31 C.F.R. Part 500 et seq., and all licenses and authorizations issued under such laws and regulations. Customer shall fully cooperate with Company in securing any export licenses and authorizations required under applicable export control and economic sanctions laws and regulations. Customer agrees that it shall not, and shall cause its representatives, employees, agents, contractors and customers to agree not to, export, re-export, divert, release, transfer, or disclose any such Product, or any direct product thereof, to any prohibited or restricted destination, end-use or end-user, except in accordance with all relevant export control and economic sanctions laws and regulations. Customer shall make its records available to Company upon reasonable request to permit Company to confirm Customer’s compliance with its obligations as set forth in this Section 3.2.

### 3.3 Customer Responsibilities.

Customer represents that Customer will use the Services only in compliance this Agreement and all applicable laws and regulations. Customer shall not, and shall not allow others to: (a) send, store, access, or authorize a third party to send, store or access spam, unlawful, infringing, obscene or libelous material, viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; or (b) interfere with or disrupt the integrity or performance of the Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may reasonably do so as necessary to confirm license compliance (number of seats) and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

## 4. CONFIDENTIALITY; PROPRIETARY RIGHTS

### 4.1 Confidential Information.

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Company includes non-public information regarding features, functionality and performance of the Services. Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services and software code/build of Customer (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.

### 4.2 Ownership.

(a) What Customer Owns. Customer shall own all right, title and interest in and to the Customer Data including any intellectual property rights therein or thereto.  
(b) What Company Owns. Company shall own and retain all right, title and interest in and to (i) the Services and Software, all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with support, and (iii) all intellectual property rights related to any of the foregoing.

### 4.3 Processing of Customer Data.

For Company Hosted Deployment, Customer grants Company the non-exclusive right to access and process the Customer Data for the sole purpose and only to the extent necessary to provide the Services. Company agrees not to use, access, disclose or process any Customer Data, except to: (a) perform the obligations permitted by Customer under this Agreement, (b) comply with applicable laws, and (c) as permitted by the Policy.

## 5. PAYMENT OF FEES; RECORDS

### 5.1 Fees and Taxes.

Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Scope of Use set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial subscription term or then current renewal term, upon 30 days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Company’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Company hereunder. If an applicable tax authority requires Company to pay any taxes that should have been payable by Customer, Company will advise Customer in writing, and Customer will promptly reimburse Company for the amounts paid.

### 5.2 Payment.

Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company 30 days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. If payment is not received by the due date, Company may, upon notice to Customer, suspend Customer’s access to the Services until overdue amounts are paid in full.

### 5.3 Reporting/Audit.

For Customer Hosted Deployment only and only to the extent Customer’s compliance cannot be ascertained without such reporting, on Company’s request, Customer will provide to Company the quantified usage of the Product as defined on the Order Form, which may include the number of Users, deployment method or other licensing attribute that may be defined in the Scope of Use. If there is a discrepancy between the report and the Scope of Use, Company may, at its expense and not more frequently than once per calendar year, audit Customer’s records relating to Customer’s use of the Services, and Customer agrees to reasonably cooperate with respect to any such audit. Any such audit shall be conducted with prior written notice, during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business. If the audit indicates an underpayment greater than 5% of the amount paid by Customer for the period audited, Customer shall also pay Company’s reasonable expenses of the audit.

## 6. TERM AND TERMINATION

### 6.1 Term.

This Agreement will continue from the Effective Date until the earlier of: (a) the expiration of all Services subscriptions, or (b) termination pursuant to Section 6.2, below (the “Term”). Each Services subscription will run for the subscription term specified in the Order Form and will renew automatically for periods equal in duration unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

### 6.2 Termination.

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Immediately upon termination of this Agreement, Customer shall cease all use of Services. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

## 7. WARRANTY AND DISCLAIMER

### 7.1 Authority.

Each of Company and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.

### 7.2 Warranty.

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

### 7.3 Warranty Exclusions; No Implied Warranties.

COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

### 7.4 Disclaimer.

COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE OR WITH ANY NON-COMPANY PROGRAMS USED BY CUSTOMER, THAT THE OPERATION OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE FEATURES OR FUNCTIONALITIES OF THE SERVICES WILL BE AVAILABLE AT ANY TIME IN THE FUTURE OR THAT ALL ERRORS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED. COMPANY SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICES COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S).

## 8. INDEMNIFICATION

### 8.1 Indemnification by Company.

Company at its own expense shall defend or settle any third party claims, actions and demands brought by anyone other than a Customer Related Party (as defined below) against Customer and its Related Parties (collectively, the “Claims”) where the third party expressly asserts that the Product: (i) infringes such third party’s trademark or copyright arising under the laws of the United States, or (ii) Company misappropriated such third party’s trade secrets in the development of the Product. “Related Parties” means directors, officers, employees, Affiliates, successors, assigns of Company or Customer, as applicable. In the event that Company believes the Product, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 8.1 applies, then Company may, in its discretion and at its sole expense: (1) procure for Customer the right to continue using such Product or any applicable part thereof, (2) replace such Product, or infringing part thereof, with a non-infringing version (or part thereof), (3) modify such Product, or infringing part thereof, so as to make it non-infringing, or (4) in the event that (1), (2) or (3) are not commercially feasible, then Customer shall have the right to terminate this Agreement solely with respect to the infringing Product, and have Company refund to Customer the pro rata unused portion of any pre-paid fees for such Product. THIS SECTION 8.1 STATES COMPANY’S SOLE LIABILITY TO, AND CUSTOMER’S EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OF ANY KIND IN CONNECTION WITH THE PRODUCT DELIVERED UNDER OR IN CONNECTION WITH THIS AGREEMENT.

### 8.2 Indemnification by Customer.

Customer at its own expense shall defend or settle any third party claims, actions and demands brought by anyone other than a Company Related Party, against Company and its Related Parties, where the third party expressly asserts: (a) misappropriation, misuse or breach of applicable law related to Customer Data; (b) Customer’s breach of Section 1 or 3 of this Agreement; or (c) claims that Customer failed to comply with applicable laws, rules or regulations in its performance of this Agreement.

### 8.3 Indemnification Procedure.

Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a claim, the party to be indemnified will notify the other party of the claim in writing; provided however, that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by as failure to give notice. The indemnifying party will assume the sole control of defense and settlement of the claim at the indemnifying party’s expense; provided, however, the indemnified party: (i) may join in the defense and settlement of the claim and employ counsel at its own expense; and (ii) will reasonably cooperate with the indemnifying party in the defense and settlement of the claim. The indemnifying party may not settle any claim without the indemnified party’s written consent unless the settlement: (x) includes a release of all covered claims pending against the indemnified party; (y) contains no admission of liability or wrongdoing by the indemnified party; and (z) imposes no obligations upon the indemnified party other than an obligation to stop using any infringing items.

### 8.4 Indemnification Exclusions.

Company shall not have any indemnification obligation pursuant to this Agreement to the extent a claim is based upon: (i) use of any version of the Product other than the then-current, unaltered version, if infringement would have been avoided by use of a current, unaltered version thereof that has been made available to Customer; (ii) combination, operation or use of the Product with software not supplied by Company if infringement would not have occurred but for such combination; (iii) use of the Product in violation of this Agreement; (iv) modifications to the Product made by Customer; (v) where Customer continues to use the Product after being notified of allegedly infringing activity or being informed of modifications that would have avoided the alleged infringement; or (vi) third party software, Customer software or Customer Data.

## 9. LIMITATION OF LIABILITY

### 9.1 NO INDIRECT DAMAGES.

EXCEPT FOR A BREACH BY CUSTOMER OF SECTION 3.1, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUE, GOODWILL, OR INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE PARTY AND/OR ITS LICENSORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

### 9.2 LIMIT ON DIRECT DAMAGES.

EXCEPT FOR A BREACH BY CUSTOMER OF SECTION 3.1, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5.

### 9.3 Allocation of Risk.

The provisions of this Agreement fairly allocate the risks between Company, on the one hand, and Customer on the other. Customer acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that Company would not enter into this Agreement without such allocation and limitation.

## ‍ 10. MISCELLANEOUS

### 10.1 Integration; Severability.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

### 10.2 Assignment.

This Agreement may not be assigned by either party without the other party’s prior written consent, whether by operation of law or otherwise, except that Company may assign this Agreement to its successor in the event of a merger, acquisition, corporate reorganization or sale of all or substantially all of Company’s assets. Any other purported assignment shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns.

### 10.3 Relationship of Parties.

No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.‍

### 10.4 Governing Law and Venue.

In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The venue for actions related to this Agreement will be in the state and United States federal courts of the Northern District of California, and both parties submit to the personal jurisdiction of those courts.‍

### 10.5 Customer Identification.

Company may use Customer’s name and logo to identify Customer as a user of the Services.

### 10.6 Notices.

All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
