CMD Contract Terms and Conditions Rev 10/16/14
CMD Standard Terms and Conditions
Each Order Form, together with these CMD Standard Terms and Conditions and applicable additional terms and conditions set forth below for certain products and services constitutes one agreement (“Agreement”). Any change to the scope of work or services shall be made by written amendment to the Order Form signed by an authorized representative of each party prior to implementation of the change.
1. TERM: The term of the agreement set forth on the Order Form (the “Initial Term”), is not cancelable during that time. Upon the expiration of the Initial Term of a subscription agreement, the Agreement shall automatically renew for successive subscription periods of equal length (“Renewal Terms”; the Initial Term, together with any Renewal Terms, is hereinafter referred to as the “Term”) unless canceled by either party on written notice delivered at least thirty (30) days prior to the expiration of the then-current Term. Promotional months are limited to the Initial Term and are not added to Renewal Terms. Products denominated as “one time” do not renew. Either party may terminate this Agreement immediately for cause if it has given written notice to the other party of a breach that the breaching party does not cure within ten business days of receipt. CMD may terminate this Agreement upon at least ninety (90) days advance written notice in the event that CMD generally discontinues offering to its customers the product or service provided hereunder, provided that Customer may, at its discretion, elect to receive a pro rata refund of any fees paid in advance or apply such fees toward a subscription to an alternative CMD product.
2.FEES AND PAYMENT: Customer agrees to pay the fees set forth in the Order Form in accordance with the schedule in the Order Form. All payments are due 30 days after the date of invoice. CMD may, in its discretion, increase fees payable hereunder by up to five percent (5%) per year during each calendar year following the Initial Term, and Customer hereby agrees to any such increase. CMD may increase fees payable hereunder by more than five percent (5%) during each calendar year following the Initial Term, provided that any increase in excess of five percent (5%) shall become effective only upon sixty (60) days advance written notice to Customer, and Customer shall have the right to terminate this Agreement on written notice to CMD delivered within thirty (30) days of receipt of the notice. CMD may increase fees on 30 days notice for monthly subscription products.
The fees and expenses to be paid by Customer do not include any federal, state, local or foreign taxes, duties or levies of any nature. Any taxes required to be paid by CMD as a result of the services provided hereunder, other than taxes based on CMD’s income, shall be billed to and paid by Customer.
Credit Card and bank debit payments will be processed and billed to Customer’s credit card or bank account (as the case may be). CMD may pre-authorize such charges with the credit card company or bank. Customer shall pay all costs of collecting overdue payments including reasonable attorneys’ fees and court costs. A charge of one and one half percent (1.5%) per month (or, if less, the maximum rate permitted by law) may be added by CMD to any overdue amounts. Customer shall notify CMD of any billing discrepancies within 90 days after they first appear on Customer’s account statement or it waives any right to dispute discrepancies. CMD may suspend its performance if any undisputed payment is past due; suspension will not relieve Customer of its obligation to pay in full.
3. LICENSE: Subject to all of the terms and conditions hereof, Customer is hereby granted a nontransferable, nonassignable and nonexclusive license to use data, reports, work product and services purchased or licensed during the Term (the "Information"), solely for Customer’s internal information and business purposes. If the product is a subscription to a database, the license granted to Customer is limited to the number of users specified on the Order Form. CMD may remove any Information or user interface without notice.
4. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNITY : EXCEPT AS EXPLICITY STATED HEREIN, CMD MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE INFORMATION OR ANY OTHER MATERIALS, INTERFACES, BANNERS, eNEWSLETTERS, LISTS, OR SERVICES PROVIDED HEREUNDER OR GUARANTEE OF ANY RESULTS TO BE DERIVED THEREFROM. WITHOUT LIMITATION OF THE FOREGOING, THE INFORMATION AND SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, AND CMD HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ITS AFFILIATES AND LICENSORS ALL REPRESENTATIONS OR WARRANTYS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN, CONDITION, QUALITY, ACCURACY, RELIABILITY, CAPACITY, MATERIAL, WORKMANSHIP, COUNTS, SCALES, COMPLETENESS OR THE LIKE, OR THAT ANY SERVICES SHALL BE UNINTERRUPTED, IT BEING EXPRESSLY AGREED THAT ALL SUCH RISKS SHALL BE BORNE BY CUSTOMER. Customer
further agrees to verify all scales, dimensions, values, costs, quantities and any other data pertaining to Customer’s use of the Information. CMD disclaims all liability regardless of whether such liability is based on contract, tort (negligence), strict liability, equity, statute, or any other theory of liability. Under no circumstances shall CMD or its affiliates or licensors be liable to Customer or any other person or entity for any incidental, special or consequential damages of any nature or kind whatsoever, including any interruption of, or loss of, service, any loss of goodwill or profits, or business loss arising out of, or in connection with, any deficiency or inadequacy of Information or other materials, work product or services made available by CMD or the preparation of proposals or bids using any of the foregoing items regardless of whether CMD has been advised of the possibility of such damages or if such damages were reasonably foreseeable. CMD’s aggregate liability for damages hereunder shall not exceed the amount of fees actually paid by Customer to CMD under this Agreement during the prior 12 months. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT AND COMPLETION OF SERVICES.
Customer shall indemnify, defend and hold harmless CMD and its affiliates and licensors and their employees, directors, agents, licensors, representatives and contractors, against any loss, claim, judgment or expense, including reasonable attorneys' fees, arising out of (i) any breach by Customer of any representation, warranty, covenant or other term or condition hereof, or (ii) any claim or threatened claim by any individual or entity made against CMD or its affiliates or licensors relating to Customer’s use of the Information or any other services or materials furnished by CMD.
5. PROPRIETARY RIGHTS: The Information and all metadata concerning the Information and its use, and all services, constitute proprietary, confidential and trade secret information belonging to CMD or its licensors. As between the parties, CMD shall retain all right, title and interest in and to the Information and services, including all copyrights, trade secrets and other proprietary rights therein. Customer acknowledges, and agrees not to challenge in any fashion, that the Information: (i) constitutes original collections and assemblies of preexisting data, the selection, coordination and arrangement of which results in works which are original, (ii) contains data which is not preexisting, but instead is CMD’s own original expression; and (iii) derives value from information gathered and published by CMD in a prompt fashion. Customer shall not create derivative works based on the Information. All rights not expressly licensed to Customer hereunder are hereby reserved by CMD and/or its licensors.
6. NONDISCLOSURE RESTRICTIONS: Customer agrees not to disclose or otherwise make the Information available to any person other than employees of Customer required to have such knowledge in the normal course of Customer's business. Customer may provide Information to independent contractors in Customer’s sales channel (for example distributors and independent representatives) who are required to have such knowledge in the normal course of Customer's business. Independent contractors who receive a CMD website password must sign CMD’s nondisclosure agreement. Customer, its employees and independent contractors may not directly or indirectly: (i) copy the Information, or disclose, publish, distribute, transfer or disseminate the Information or project leads based on the Information to any third party; (ii) use the Information in a manner that violates any applicable law, copyright or other third party right; (iii) use the Information to compete with any products or services of CMD or its affiliates or to provide benchmark results. Customer represents, warrants and covenants to CMD that it and its employees and independent contractors who receive Information, are not, and shall not be during the Term, suppliers of project leads to other entities. Customer represents, warrants and covenants to CMD it has entered into this Agreement under its true name and is not, directly or indirectly, impersonating any real or fictitious person or entity or otherwise acting to withhold the actual identity of Customer. Customer shall be responsible for breaches of this Section by its employees or independent contractors. CMD reserves the right to “seed” the Information made available hereunder from time to time with a small quantity of data that does not correspond to any actual construction projects, for the sole purpose of identifying unauthorized disclosures or uses of Information.
Each user must have his or her own user name and password. CMD shall have the right to review records of Customer relating to compliance with this Section 6 on not less than ten (10) days prior written notice. CMD will hold all information disclosed by Customer pursuant to this Section 6 in confidence and use it solely to enforce its rights.
7. WEBSITE TERMS AND CONDITIONS : All access to CMD websites is subject to the following terms:
If Customer posts any contact information, literature or other information of any kind to a CMD website, Customer is solely responsible for that information, and acknowledges that personal information may be viewed, collected or used by other site visitors and may result in unsolicited communication from site visitors. CMD may modify or remove such posted information in its sole discretion. Customer may not post any content that is not original to Customer, that is threatening, harassing, profane, tortious, defamatory, vulgar, obscene, deceptive, fraudulent, invasive of another's privacy or publicity rights, or any information that infringes any intellectual property right, or violates any laws, regulations or securities exchange requirements, or that contains a virus, worm or other harmful component, (each “Prohibited Content”), or contains advertising. Customer grants CMD a royalty-free, unrestricted, worldwide, perpetual, irrevocable, nonexclusive, sub-licensable and freely transferable right and license, for all formats and media, whether now known or hereafter devised or discovered, to use, reproduce, modify, edit, adapt, publish, translate, create derivative works of, distribute, perform, publish and display (in each case, in whole or in part) all such information Customer posts, including without limitation any ideas, concepts, methods, systems, designs, plans, techniques or other similar information included therein, and/or to incorporate them in other works.
Customer may not use any CMD website in an unlawful manner or to promote unlawful conduct or in a manner likely to give rise to civil liability, impersonate, or misrepresent Customer’s affiliation with, any other person or entity, engage in spamming or “flooding”, “scrape” or use any other automated means to extract data or other information from a CMD website, frame a CMD website, or attempt to gain unauthorized access to other computer systems through a CMD website.
Customer may access a CMD website using a password only if all information provided during the registration process is correct and kept updated. Customer is responsible for all use of passwords used in conjunction with Customer’s account, and agrees not to use any other entity’s user name, password or account number.
Customer agrees that CMD has no liability for information, services or materials provided by third party web sites to which links are provided on a CMD website.
9. FORCE MAJEURE : No delay, failure or default in performance of any obligation of either party hereunder, except payment obligations, shall constitute a breach of this Agreement to the extent caused by events or conditions beyond the affected party's reasonable control (such as, without limitation, war, acts of terrorism, acts of government, natural disasters, fire and explosions (“Force Majeure Events”).
10. MISCELLANEOUS : Any disputes arising hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in the City of Atlanta, Fulton County, State of Georgia, and the parties consent to the personal jurisdiction of such courts. This Agreement and performance hereunder shall be governed by the laws of the State of New
York without reference to conflict of laws principles. Customer may not assign its rights, duties or obligations under this Agreement to any person or entity without the prior written consent of CMD. CMD may assign this agreement. Customer shall comply with all laws, including export control laws and regulations, applicable to its use of the Information. The waiver or failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. CMD and Customer are independent contractors. CMD may use third party contractors to perform any of its obligations under this Agreement. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent omitted, and the balance of the Agreement shall remain enforceable. Sections 2, 4-10 of this Agreement, MS 2-4, specEdge 1-6, Custom Analytics 4 and cūbus 1-2 if applicable, shall survive the expiration or termination hereof. All notices, including notices of address change shall be in writing and shall be deemed to have been given when personally delivered, mailed by certified mail return receipt requested, or when sent by recognized overnight courier service to the address of CMD or Customer shown on the Order Form. In the case of a notice to CMD, a copy of such notice shall also be delivered by courier or certified mail to Construction Market Data, 30 Technology Parkway South, Norcross, GA 30092, Attn: Chief Executive Officer. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed herein. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.
MARKETING SOLUTION SERVICES
If you are ordering Manu-Spec, Spec-Data, or premium listing these additional terms also govern the Agreement:
MS 1. ACCEPTANCE OF WORK PRODUCTS : No later than ten (10) days after submission to Customer of the final and each draft Marketing Solution to be delivered by CMD, Customer will review and verify all information provided by Customer on which it is based. Customer will submit a written statement to CMD accepting the Marketing Solution or specifying in detail how the Marketing Solution is inaccurate. Customer failure to timely respond shall not be cause for extension of a subscription. CMD shall have a commercially reasonable period of time to make the required corrections to the Marketing Solution, after which time CMD will resubmit the Marketing Solution and the review cycle will recommence. If Customer fails to send any such statement within ten (10) calendar days after CMD submits the final Marketing Solution, then the Marketing Solution will be conclusively accepted. Marketing Solution Services work product will be posted by CMD in Smart Building Index.
MS 2. INTELLECTUAL PROPERTY RIGHTS : All Manu-Spec and Spec-Data documents created by CMD for Customer are the copyrighted property of CMD. CMD grants to Customer a perpetual, royalty free, world-wide right to make and distribute copies of Manu-Spec and Spec-Data documents, to maintain copies of such documents on Customer’s websites, and to permit its customers and other third parties to download, copy and utilize such documents; provided, that, neither Customer nor any other person, firm or company is permitted to utilize CMD’s Manu-Spec, Spec-Data or any other CMD trademark or the CSI logo on or in connection with any Manu-Spec or Spec-Data document which has been modified after delivery by CMD. Manu-Spec and Spec-Data are registered trademarks and may not be used by Customer or any other person, firm or company.
MS 3. RIGHTS TO DATA : CMD hereby acknowledges and agrees that all project information and data made available to CMD by Customer under this Agreement, if any, (“Customer Data”) is owned, as between CMD and Customer, exclusively by Customer. CMD and its licensors own and retain all right, title and interest in and to (i) CMD’s software and all other intellectual property, technology and/or tools owned or licensed by CMD, and (ii) all reports, text, graphics, designs, photographs, data, and other materials that are created by or on behalf of CMD for Customer in connection with this Agreement, including all reports and data delivered to Customer, but expressly excluding any and all Customer Data (“Work Product”), and any and all modifications or improvements to any of the foregoing, and no rights or licenses, express or implied, are granted by CMD to Customer or any third party except as expressly set forth in this Agreement. Subject to the payment of all fees and expenses, CMD grants Customer a perpetual, nonexclusive, royalty free license to use all Work Product delivered to Customer by CMD.
MS 4. PRODUCT LITERATURE: Customer represents, warrants and covenants to CMD that posting online any product literature provided by Customer will not violate any intellectual property, privacy, publicity, or other rights of any third party. Customer grants CMD a royalty free license to make such literature available to third parties.
MS 5. TIMELY SUBMITTAL : CMD will identify items required for CMD to produce the Work Product. Customer is required to submit identified items to the CMD agent within thirty (30) days following execution of this agreement. If Customer fails to timely respond, customer’s payment obligations shall remain unchanged, and the subscription term shall not be extended as a result of such delay.
If you are ordering specEdge campaigns these additional terms also govern the Agreement:
specEdge 1. SERVICES : Customer retains CMD to provide a) customized direct mail and/or permission-based email marketing services to predetermined recipients pursuant to an Order Form, and/or b) telephone contact by CMD with targeted firms of the Customer’s selection (the “Teleservices Program”) to generate interest in Customers’ products and services. Numbers of expected recipients on the Order Form are estimates only and are not guaranteed minimums. CMD shall distribute Customer materials and/or messages to predetermined recipients and will report to Customer the name and selected contact information for each recipient within the time stated on the Order Form. Reports regarding the recipients of electronic or mail campaigns (“Lists”) may only be used in connection with Customer’s marketing of its own products and services, and for no other purpose, and may not be disclosed to or used for the benefit of third parties; all Personally Identifiable Information must be maintained in strict confidence. Lists are at all times the exclusive property of CMD.
specEdge 2. PAYMENTS : Customer will be invoiced for and agrees to pay all postage charges in full after completion of mailings. Both Advertiser and its advertising agency, if an advertising agency executes this Agreement, shall be responsible for payment of all money due CMD under this Agreement.
specEdge 3. CONTENT : Customer will submit all marketing materials and approved messages (”Content”) to CMD for campaigns. CMD reserves the right to reject any Content. Campaign will begin no earlier than five (5) business days after CMD receipt of all Content or the agreed-upon campaign start date, whichever date is later. If Customer does not submit acceptable Content within thirty (30) calendar days of execution of an Order Form, the campaign will be deemed fulfilled and Customer must make the payments set forth on the Order Form. Content must be provided electronically as JPEG, HTML, PDF, FLV, 3PG, AMV, AVI, MPG, M4V, MP4, SWF, or WMV files conforming to the mechanical specifications published by CMD. Customer must provide sufficient inventory of direct mail materials or adequate sources of supply to satisfy campaign delivery requirements; CMD recommends delivery of 20% excess materials. No later than ten (10) days after submission to Customer of marketing materials, Customer will review and verify all information therein.
specEdge 4. PROHIBITED CONTENT INDEMNIFICATION : Company represents, warrants and covenants that the Content will not contain (i) any Prohibited Content (ii) any libelous, defamatory, unethical or otherwise objectionable information, including without limitation any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability; (iii) any misleading or deceptive information, or any misrepresentation with respect to products or services offered by Company or its advertisers; (iv) any chain letters, illegal pyramid, or “Ponzi” type schemes; (v) any information, audio, video, graphics, software, or other works that violate any person’s copyright, trademark or any other intellectual property rights; (vi) any deceptive information which would imply affiliation or sponsorship of any entity or person other than Company without the written consent of such entity or person;(vii) content having the primary purpose of advertising or promoting a product or service that a minor is prohibited by law from purchasing, (viii) any survey, or (ix) any information that violates a third party’s rights of privacy or rights of publicity. Company shall indemnify, defend and hold harmless CMD and its affiliates and its and their employees, officers and directors against any loss, claim, judgment or expense, including reasonable attorneys' fees, arising out of (i) any breach of the foregoing representations and covenants or (ii) the purchase by any third party of Company’s products or services.
specEdge 5. CAMPAIGNS: The term of any campaign shall be as specified on the Order Form, or if no term is specified for the shorter of one year or until the campaign has been fulfilled. Termination of an Order Form shall not preclude CMD from pursuing any other remedies available to it, or relieve Customer of its obligation to pay all fees and expenses accruing prior to such termination.
specEdge 6. DISCLAIMER: ALTHOUGH CMD USES REASONABLE EFFORTS TO MAINTAIN ACCURATE LISTS, NEITHER CMD NOR ITS AFFILIATES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS OR AGENTS REPRESENT OR WARRANT THAT THE INFORMATION CONTAINED IN THE LIST IS COMPLETE OR FREE FROM ERROR, AND HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY TO ANY PERSON FOR ANY LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE LIST, WHETHER SUCH ERRORS OR OMISSION RESULT FROM NEGLIGENCE, ACCIDENT, OR ANY OTHER CAUSE.
If you order custom analytics, these additional terms also govern the Agreement:
Custom Analytics 1. COOPERATION: Customer acknowledges that the timely provision to CMD of complete and accurate information and data is essential to satisfactory and timely performance of this Agreement.
Custom Analytics 2. PROFESSIONAL SERVICES: Customer shall make available in a timely manner, at no charge to CMD, all technical data, files, budgets, estimates, research, documentation or other information in the possession of Customer, if any, reasonably required by CMD for the performance of services and report preparation. Customer assumes the risk of any problems resulting from the content, completeness, accuracy, consistency and timeliness of all such data, materials and information supplied by Customer. In the event that services and report preparation are materially delayed by Customer by a reason other than a Force Majeure Event, CMD may alter this Agreement to reflect unavoidable increased costs, to reduce the scope of services, or to extend deadlines, milestone dates, or delivery dates, as appropriate.
Custom Analytics 3. PROJECT MANAGEMENT: CMD and Customer will each designate an individual to act as a primary point of contact between the parties with respect to this Agreement. In the event that services are materially delayed by Customer by reason of a failure to maintain a primary point of contact, CMD may alter this Agreement to reflect unavoidable increased costs, to reduce the scope of services, or to extend deadlines, milestone dates, or delivery dates, as appropriate.
Custom Analytics 4. WARRANTY AND REMEDY: CMD warrants that market intelligence services will be performed in a diligent, professional and workmanlike manner, in accordance with generally accepted industry standards. For any breach of the warranty contained in this Section Custom Analytics 4, Customer’s exclusive remedy, and CMD’s entire liability, shall be, at the option of CMD, the re-performance of services or refund of fees paid to CMD for deficient services.
If you order cūbus, these additional terms also govern the Agreement:
cūbus 1. LICENSE : Subject to all of the terms and conditions hereof, Customer is hereby granted, during the Term, a personal, nontransferable, nonassignable and nonexclusive license to use cūbus, including but not limited to, the cūbus user interface, its various graphs, charts, and other component parts, and underlying construction project data and company data, which shall be included in Information.