Terms and Conditions
Effective Date: Jan 1, 2020
This Agreement contains a mandatory, binding arbitration clause and a waiver of class-action remedies in Section 14. You may opt out of arbitration by following the steps in Section 14b. By downloading, installing or using the Software, or otherwise signaling your acceptance of this Agreement, you:
Acknowledge that you have read and understand this Agreement;
Represent that you are 18 years of age or older (and, if you are an employee or contractor of Customer, that you have the authority to accept this Agreement on behalf of Customer); and
Accept this Agreement and agree that you are legally bound by its terms, including the mandatory, binding arbitration clause and class action waiver in Section 14.
Terms & Conditions
These Terms and Conditions (this “Agreement”), apply to purchases of software, cloud services, applications and related products, including StruxHub (“Software”) from Holcim Technology Ltd (CH16030030495), Zuercherstrasse 156, 8645 Jona (Switzerland) ( “HTEC”).
In this Agreement “you”, “your” or “Customer” means the individual, company or entity that has entered into this Agreement with HTEC and “we”, “us”, “our” or “StruxHub” means HTEC and “party” and “parties” means you and/or us, as the context requires.
1. Access to Software
You can place orders for Software to use in connection with your project (each a “Project”) directly from us or as otherwise specified on our website. Orders will describe the Software, the Project, fees and any other special terms for using the Software you have ordered (“Order”).
HTEC may, from time to time and without prior notice, add, delete or change the features or functionality of the Software, as we generally make such additions, deletions or changes available to our other customers.
Customer shall not, directly or indirectly, (i) sell, lend, rent, distribute, resell, lease, assign, license, sublicense or otherwise transfer to any third party any Software, or the rights granted to Customer with respect to any Software, (ii) translate, port, modify, reproduce, distribute, republish, frame, download, cache, or make or create derivative works based on any Software, (iii) access or use the Software in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas, (iv) derive or attempt to derive the source code, source files, or any component or structure of all or any portion of any Software by reverse engineering, disassembly, decompilation, or any other means (the foregoing prohibitions include review of data structures or similar materials produced by programs), or access or use any Software in order to build or support or assist a third party in building or supporting, software or services competitive to HTEC or its Software and services, (v) perform or disclose any benchmark or performance test of any Software, (vi) remove, obscure or alter any proprietary notice on the Software, (vii) use the Software to collect, process or store financial or personal information, (viii) use or permit the access to or use of any Software, for any unlawful activity, including exporting in violation of applicable law, or (ix) access or use the Software or any other deliverable for any use other than the those authorized in this Agreement.
4. Term and Termination
a. Term. This Agreement is effective for the subscription term and Project set forth in your Order (“Initial Term”) unless terminated earlier as permitted below. For paid versions of the Software, if no term was specified on your Order, the default initial term is one year from the date you first accessed the Software. Following the Initial Term, this Agreement shall automatically renew for subsequent periods time that are of the same length as your then current term (e.g. the Initial Term if there have been no renewals or the term of the then current Renewal Term if you have renewed) (each such term, a “Renewal Term” and together with the Initial Term, the “Term”). For free versions of the Software, including any feature that we give you on a trial, courtesy or evaluation basis (“Free Trial”), this Agreement is effective for as long as we make the Software available to you. Any Free Trial that we choose to make available to you is subject to the terms of this Agreement for as long as the Free Trial is in use.
b. Termination. We may suspend, disable or terminate the Software or any portion of the Software without notice to you, and without liability, if (i) you fail to make any payments due under or otherwise violate the terms of this Agreement or any other agreement between you and us or any of our affiliates, (ii) you use the Software for an unlawful purpose, or (iii) your use of the Software harms or interferes with our systems or network, violates privacy or intellectual property rights, or publishes or disseminates threatening, obscene or offensive material. Notwithstanding anything else contained in this Agreement, we reserve the right to terminate this Agreement for any other reason, without cause and without any liability, upon 30 days advance written notice to you, provided that in such event we shall refund to you any unused Software fees on a pro-rated based.
You may otherwise terminate this Agreement at any time by sending written notice, which includes “Termination” in the subject line to HTEC at info@struxhub. Your access to the Software will continue until the end of the month in which you notified HTEC of your termination. We will credit your account any prepaid unused fees for the Software within 60 days of your termination, such credits may be applied toward the purchase of future Services from HTEC. Any unused credits will automatically expire 12 months following their issuance.
c. Effect of Termination. Except as set forth in this Agreement, in the event of termination of this Agreement, the rights and obligations hereunder will terminate immediately. Any payment or other obligation that has accrued for Software used as of such termination date will survive such termination. In the event of any termination of this Agreement any provision hereof required to enforce the parties’ rights and obligations hereunder or that by its terms continues after such termination, will survive and will continue in effect as described therein.
d. Data Access. If your Order includes data export access, then upon your written request which includes “Request for Customer Content Data” in the subject line to email@example.com within 60 days of the date of your termination, HTEC shall provide you with an export file of Customer Content stored on HTEC’s systems in a commonly used format reasonably determined by HTEC. You agree that HTEC shall have no obligation to provide you an export file if more than 60 days have passed since your termination. To fulfill certain tax audit requirements or as otherwise permitted by the Terms, HTEC may retain some Customer Content, provided that such retained Customer Content will continue to be subject to the confidentiality provisions herein for as long as it is retained.
5. Fees and Renewal
a. Fees. Fees payable for the Software shall be as set forth in your Order, or as otherwise specified on our website. Fees do not include taxes or other government required fees. We will charge you for such taxes and fees with respect to states and other jurisdictions for which we are obligated to collect and report them. All fees will be paid in the manner specified by your Order, or if not specified in the Order, in the manner specified on our website.
b. Charges. Unless otherwise specified in an Order, (i) HTEC will automatically charge your payment information on file for any renewals, upgrades, overage fees and (ii) additional Software purchased and Software fees are subject to annual increases at the level of then-current standard pricing.
c. Free Trial. We will not charge you for any Free Trial, however, if you continue to use the Software after it is no longer made available to you as a Free Trial, we may charge you for your continued use of the Software at our then-current standard pricing in accordance with this Section 5.
6. Content and Data
a. Customer Content. All content or data received by HTEC, or which Customer delivers into the Software or otherwise provides to HTEC (“Customer Content”) is and will remain Customer’s exclusive property. Customer hereby grants HTEC, a worldwide, non-exclusive, revocable (as set forth in Section 4), nontransferable, non-assignable (other than as set forth in Section 11), royalty-free license (without the right to sublicense) to access, use, host, reproduce, distribute, display, modify and prepare derivative works of all Customer Content solely for purposes of providing the Software to Customer, and to improve the Software and our services, which license extends to any third party assisting HTEC.
b. HTEC Content. All content, software functionality or data made available to you through access or use of the Software or otherwise provided by HTEC (“HTEC Content”), is and will remain the exclusive property of HTEC and its licensors. You may only use the HTEC Content for your own internal use in connection with your use of the Software.
7. Intellectual Property
a. HTEC Intellectual Property. As between the parties, HTEC owns and retains all right, title and interest in and to all of the Software, all improvements, modifications and derivative works of the foregoing, and all intellectual property rights in any of the foregoing. To the extent that Customer acquires any right, title or interest in or to any Software, any deliverable, or any intellectual property rights therein, Customer hereby assigns to HTEC all such right, title and interest in the foregoing. Except for the licenses HTEC expressly grants to Customer hereunder, Customer is not provided with any license or right to the Software or the intellectual property rights therein, whether by implication, estoppel or otherwise. Customer is not granted any right to use any HTEC trademark, service mark, logo or trade name.
b. Feedback. Customer, its authorized users and its other employees and agents may (but are not required to) provide HTEC with suggestions, comments or other feedback regarding the Software (“Feedback”). If Customer, its authorized users and its other employees and agents do provide HTEC with Feedback, then HTEC may, and you hereby grant HTEC a license to, freely use, disclose, reproduce, license, distribute and otherwise commercially exploit such Feedback in connection with any Software, technology, service, specification or other documentation.
8. Representations and Warranties
a. Mutual Representations and Warranties. Each party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and this Agreement has been duly authorized by all necessary corporate (or other entity) action, and (ii) this Agreement is the legal, valid and binding obligation of it, enforceable against it in accordance with the Agreement’s terms.
b. Customer Representations and Warranties. You represent, warrant and covenant that you have all rights and licenses necessary to provide the Customer Content to us and grant us the licenses set forth herein and that the Customer Content and the use of it as contemplated by this Agreement does not and will not infringe, misappropriate or violate any intellectual property rights of any third party, violate any right of privacy or publicity or breach any contract to which Customer is a party or bound.
c. Warranty Disclaimers and Limitation of Liability. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8 ABOVE, (A) THE SOFTWARE, ANY OTHER MATERIALS AND HTEC CONTENT ARE PROVIDED “AS IS” AND WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (B) EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND REGARDING THE SOFTWARE, DELIVERABLES AND HTEC CONTENT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR THAT THEIR USE WILL PRODUCE ANY RESULTS, FINANCIAL OR OTHERWISE. HTEC SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY (A) FOR SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF HTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) FOR DAMAGES ARISING OUT OR IN CONNECTION WITH THIS AGREEMENT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
You acknowledge that by using the SOFTWARE, you relieve HTEC of any liability for personal injury, property damage or damages in respect of your Project.
To the greatest extent permitted by law, you agree to indemnify, defend, and hold harmless HTEC and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Software or your breach of this Agreement, including but not limited to the content you submit or make available through this Software.
Each recipient of Confidential Information under this Agreement shall (a) use and copy the Confidential Information only for purposes of performing its obligations under this Agreement, (b) hold the Confidential Information in strict confidence, and (c) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as the recipient protects and safeguards its own confidential information (but not using less than a reasonable degree of care). The recipient may disclose that portion of the Confidential Information which, in the judgment of its counsel, the recipient is required to disclose by law, by regulation, or pursuant to the order or requirement of a court, administrative agency or other governmental body with proper jurisdiction; provided that the recipient notifies the disclosing party a reasonable time prior to making such disclosure and cooperates with the disclosing party’s efforts to seek a protective order or otherwise prevent or restrict such disclosure. “Confidential Information” means all information disclosed by one party to the other that is designated, at the time of disclosure, as confidential or that is of a nature that would reasonably be considered confidential, and does not include information that the recipient can show (i) is known publicly through no breach of this Agreement, (ii) was in its possession free of any obligation of confidence at the time of disclosure, (iii) was received from a third party free to disclose such information without restriction, or (iv) was independently developed without using or referring to the information of the disclosing party or breaching this Agreement. HTEC’s Confidential Information includes without limitation the HTEC Content and all information relating to HTEC’s Software. Customer Content is not Confidential Information.
This Agreement may not be assigned by either party without the prior written consent of the non-assigning party; except that HTEC shall have the right to assign this Agreement to any of its affiliates or in connection with a merger or other business combination in which HTEC is not the surviving entity or in connection with any sale of all or substantially all of the capital stock of HTEC or the assets of HTEC or its affiliates related to this Agreement. Any attempted assignment in violation of this provision is null and void.
12. Force Majeure
If either party is unable to perform any of its obligations under this Agreement because of severe weather, natural disasters, acts of God, riots, wars, theft, governmental action, acts of our suppliers, or other events beyond our reasonable control, then we are relieved from our performance of such obligations to the extent, and for the duration, that such performance is prevented by such events.
We may revise this Agreement from time to time to better reflect: (a) changes to the law, (b) new regulatory requirements, (c) improvements or enhancements made to our Software. If an update affects your use of the Software or your legal rights as a user of our Software, we’ll notify you prior to the update’s effective date via an in-Software notification or by sending an email to the email address associated with your account. This updated Agreement will be effective no less than 30 days from when we notify you. If you don’t agree to the updates we make, please terminate this Agreement by sending written notice, which includes “Termination” in the subject line to HTEC at info@struxhub. Your access to the Software will continue until the end of the month in which you notified HTEC of your termination. We will refund you any prepaid unused fees for the Software within 60 days of your termination. By continuing to use or access the Software after the updates come into effect, you agree to be bound by the revised Agreement.
1. Please read this Section carefully. It affects your legal rights. It provides for resolution of disputes through individual arbitration instead of court trials and class actions. Arbitration is more informal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury, and discovery is more limited. Arbitration is final and binding and subject to only very limited review by a court. This arbitration clause shall survive termination of this Agreement and shall apply to all disputes whether arising before, during, or after the termination of this Agreement.
a. Contact Information. HTEC may contact or notify you for the purposes described in this Agreement through the Software, or using any contact information you have supplied in connection with the Software. If you have a complaint or concern regarding this Agreement or the Software, or for more information, please contact HTEC at firstname.lastname@example.org or by mail at the following address:
Holcim Technology Ltd, Im Schachen Holderbank 5113, Switzerland
Attention: Chief Digital Officer
b. Opting Out of Mandatory Arbitration. You have a right to opt out of the agreement to arbitrate in Sections 14c through 14e, by unambiguously notifying HTEC in writing at the address above, Attn: Chief Digital Officer - HTEC Arbitration Opt-Out no later than 60 days of the date you first accepted this Agreement that you opt out of mandatory arbitration under this Agreement. Unless you validly opt out as provided in this Section 14, the arbitration requirements in Sections 14c through 14e, will remain effective, even if this Agreement is terminated.
c. Notice of Claim. For all disputes arising out of or relating in any way to the Software or this Agreement (including any dispute about arbitrability itself), you must first send a written description of your claim to HTEC to allow HTEC an opportunity to resolve the dispute. You and HTEC each agree to negotiate your claim in good faith. If the parties cannot resolve the dispute within 60 days of written notice of a claim, then either party may request arbitration.
d. Arbitration Procedures. The individual arbitration of any dispute or claim arising out of or relating in any way to the Software shall be conducted in accordance with the rules of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement. For clarity, disputes concerning the interpretation or enforceability of this arbitration agreement shall also be subject to arbitration under this Section. The AAA Consumer Arbitration Rules and information about arbitration and fees are available online at www.adr.org. You agree that this Agreement evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law, and not governed by state law. Any arbitration shall take place in London, England. The individual arbitration will be conducted in the English language. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your individual claim, and must follow and enforce this Agreement as a court would. Any arbitration shall be confidential, and neither party may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
e. Costs. Each party will bear the fees and expense of its own attorneys, experts, witnesses and preparation and presentation of evidence at the arbitration. Each party will equally share all filing, administration and arbitrator fees.
f. Class Action Waiver for Arbitration. You agree that any proceeding in arbitration will be conducted only on an individual basis and not in a class, consolidated, or representative action.
g. Governing Law. By using the Software, you agree that the statutes and laws of the United States and the State of New York, without regard to conflicts of laws principles, will apply to all matters relating to use of the Software. If the arbitration agreement in Sections 14c through 14e, does not apply to a given dispute or claim, you agree that any litigation of that dispute or claim shall be subject to the exclusive jurisdiction of the state or federal courts in New York County, New York, United States. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement.
h. Class Action Waiver and Jury Waiver in Litigation. You agree that, if you have validly opted out of arbitration pursuant to Section 14b, or if the arbitration agreement contained in Sections 14c through 14e, is found to be unenforceable, any claim or proceeding to be pursued in court will be conducted only on an individual basis and not in a class, consolidated, or representative action. You further agree that if a claim or proceeding proceeds in court rather than through arbitration, you and HTEC each waive the right to a jury trial.
i. Time Limit for Filing Claims. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to any use of the Software or any activity related to this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Each party is an independent contractor and neither party’s personnel are employees or agents of the other party for any purpose whatsoever. Nothing hereunder will constitute, create, give effect to or otherwise recognize a joint venture, partnership or business entity of any kind, nor will anything hereunder constitute either party as the agent or representative of the other. Headings are for convenience. No presumption is to operate in either party’s favor as a result of who drafted this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation,” and the word “or” is not exclusive. This Agreement supersedes all prior discussions and writings regarding (and constitutes the entire agreement between the parties with respect to) the subject matter of this Agreement. This Agreement is effective upon Customer’s purchase of the Software. The parties may only amend this Agreement in writing. If any provision of this Agreement is for any reason held to be invalid, illegal, or unenforceable under applicable law in any respect, then such invalidity, illegality, or unenforceability will not affect the other provisions of this Agreement, this Agreement will be construed as if such invalid, illegal, or unenforceable provision were excluded from this Agreement, and the court in its discretion may substitute for the excluded provision an enforceable provision which in economic substance reasonably approximates the excluded provision.