ELeads User Agreement - Construction



Category: Reference Creation Date: 10/04/01 2:49 PM

Product: eLeads

Keywords: eLeads, User, Agreement, Contract, Terms

Document: 500000a-NewTemplate.doc

eLeads User Agreement

"e-Leads" is a construction and project bidding news information service (the "Service") provided by F.W. Dodge, a division of The McGraw-Hill Companies, Inc. ("Dodge"). All use of the e-Leads pages are subject to the terms and conditions set forth below. By completing the registration process, clicking the User Agreement acceptance "button", and using Dodge News, you represent that you are 18 years old or older and agree to abide by the following terms and conditions. The terms "you" or "User" refers to the person who completed the registration process.

By clicking the "Accept" button, you also agree that Dodge may store the information you provided as part of the registration process, and provide aggregate statistical information about Dodge Users to potential advertisers on F.W. Dodge websites and other publications offered by Dodge or Dodge’s parent company, The McGraw-Hill Companies, Inc. ("The McGraw-Hill Companies"). Dodge also may use the information to inform you about other Dodge or McGraw-Hill Companies' publications, products and services, unless you notify Dodge that you do not wish to receive this information. However, except as noted below, no one other than Dodge will receive your name, address, phone number, e-mail address, or other specific personal identifying information, without your express prior consent. You understand and agree that specific personal identification information pertaining to you may be accessible by third party auditors in connection with a review of Dodge’s records; any such auditor shall be required to enter into an express confidentiality undertaking with Dodge before gaining access to any such information. For a full explanation of Dodge’s (McGraw-Hill’s) customer privacy policy notice, click on the Privacy Policy link at the bottom of this document.

Dodge reserves the right to change the terms of this Agreement. Changes will be posted on the F.W. Dodge or e-Leads About page. If any of these changes are unacceptable, you may terminate your subscription as described below under "Term and Termination." Use of e-Leads following the posting of any changes to these terms and conditions constitutes acceptance of those changes by the User.

Definitions

1. Project - a specific construction project, including sub-projects for which Dodge has collected and is providing information

2. Project News - collection of textual information about a construction project which includes project location, bid date, valuation and project details. Included in e-Leads is Full Project News.

Subject to the terms and conditions of this Agreement, F.W. Dodge hereby grants to the User the non-exclusive and non-transferable right to access and use the Service.

1. LICENSE

The Service may be used only by employees of the User. Only one person at a time may access the Service. The Service may not be used or accessed by any other person or entity, including but not limited to, employees of any entity which is not wholly-owned by User. In addition to and notwithstanding anything to the contrary herein, the Service may not in any event be used or be permitted to be used in any manner that is competitive with Dodge’s distribution of the Service.

User may retrieve, download and print one complete copy of that data provided within the Service, however, that all use of that copy shall be limited to employees of the User. Except as provided in the foregoing sentence, Users may not make copies of the data included within the Service.

The User may not disseminate any portion of the Data through electronic means, including mail lists or electronic bulletin boards, without the prior consent of Dodge.

2. PROPRIETARY RIGHTS

The User shall not, except as expressly permitted herein, copy, modify, alter, sell, transfer, license, assign, publish, distribute, disseminate, allow access to or convey any portion of the Service, or any derivation, revision or combination thereof. The User expressly acknowledges that the Service was prepared by Dodge and/or its licensors through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money. The User shall keep any usernames and passwords strictly confidential and such usernames and passwords shall not be disclosed to anyone not an employee of the User.

The User agrees to protect all copyright and other proprietary rights of Dodge and/or its licensors in the Service and to comply with reasonable written requests made by Dodge to protect Dodge and/or its licensors' proprietary rights in the service. The documents contained on this system may contain copyrighted materials owned by other third parties, including architects, engineers or others. This material is protected under the United States Copyright law. Any reproduction, alteration or reuse of these materials without express written permission of the copyright owner is prohibited, except that an authorized user may reproduce the documents for use in preparing bids or proposals pursuant to a request to bid on the project represented in the plans.

This Service in no way obligates Dodge, the architects, engineers or others to provide additional or updated bidding documents released as addenda.

3. ONLINE ACCESS

The User shall provide, at its expense, a computer, telephone line, and modem which is fully compatible with the Service. All fees associated with such telephone lines are the responsibility of the User.

4. TERM AND TERMINATION

This Agreement will continue until terminated by either Dodge or you. The Agreement can be terminated by either party, at any time. Dodge may discontinue or change the service or its availability to you, at any time. After ninety (90) days of inactivity the User’s username and password will be eliminated and removed from the system. Thirty (30) days notice is required for service termination, (either in writing or electronic) through the e-commerce module. User must cancel service prior to the end of the month or the customer's credit card will be charged for the monthly service and cancellation will take effect on the first day of the following month.

Upon termination of this Agreement for any reason, User will destroy all copies of the Data delivered to and reproduced by User pursuant to this Agreement in User's possession or under User's control; and expunge any and all Data from any data storage facility, including but not limited to computer processing units, owned by or under the control of User.

5. FEES AND PAYMENT

Using e-Leads, you may purchase Project News on a monthly basis, providing set number of full reports available to customer per month and by report after monthly membership is established. You agree to pay all charges incurred in connection with your username and password for e-Leads (including any applicable taxes) at the rates in effect when the charges were incurred. Dodge may change the purchase fees and charges in effect, or add new charges, by posting new fees or additional fees on-line on the e-Leads Purchase screen. All charges incurred in connection with your username and password will be billed to the credit card you designate during the registration process or to the credit card you designate at time of purchase. Once you have purchased a project via e-Leads, you will be granted access to the information contained in that project and any subsequent updates until 30 days after the project’s bid date or last update date. Projects are not returnable for refund. If you believe your username and password have been used to access e-Leads without your authorization, please call Dodge Customer Service at the telephone number posted on the Help Menu without delay. Please Note: You are responsible for paying any charges billed to your credit card by an unauthorized third party. DODGE SHALL NOT BE LIABLE FOR ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY WHICH WERE NOT AUTHORIZED BY YOU.

6. NO WARRANTIES/LIMITATIONS ON LIABILITY

NEITHER DODGE NOR THE McGRAW-HILL COMPANIES NOR ANY THIRD PARTY LICENSORS MAKES ANY GUARANTEES OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF OR RESULTS TO BE OBTAINED FROM, ACCESSING AND USING THE SERVICE, NOR ANY MATERIAL THAT CAN BE ACCESSED (VIA A DIRECT OR INDIRECT HYPERLINK OR OTHERWISE) THROUGH THE SERVICE. NEITHER DODGE, NOR THE McGRAW-HILL COMPANIES, NOR ANY THIRD PARTY LICENSORS SHALL BE LIABLE TO THE USER OR ANYONE ELSE FOR ANY INACCURACY, DELAY, INTERRUPTION IN SERVICE, ERROR OR OMISSION, REGARDLESS OF CAUSE, OR FOR ANY DAMAGES RESULTING THEREFROM. IN NO EVENT WILL DODGE, THE McGRAW-HILL COMPANIES, NOR ANY OF THEIR THIRD PARTY LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST TIME, LOST MONEY, LOST PROFITS OR GOOD WILL, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEN OR UNFORESEEN WITH RESPECT TO ANY USE OF THE SERVICE. USER AGREES THAT ALL DEMANDS OF WHATEVER KIND ASSESSED AGAINST DODGE OR THE McGRAW-HILL COMPANIES OR ANY OF ITS THIRD PARTY LICENSORS ARISING OUT OF RELATING TO USE OF THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT THE USER PAID TO DODGE FOR USE OF THE PARTICULAR SERVICE THAT GIVES RISE TO THE APPLICABLE CAUSE OF ACTION.

SOME STATES DO NOT ALLOW THE LIMITATIONS EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO USER.

7. GENERAL

Neither party shall have any liability for any default resulting from force majeure which shall be deemed to include any circumstances beyond its reasonable control. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof. The provisions and terms of any purchase order or other instrument issued by the User shall be of no effect and the acceptance of any such order or instrument by Dodge shall not in any way extend or alter the terms of this Agreement. Failure of either party to insist at any time upon strict compliance with the terms of this Agreement or to seek remedy for any breach thereof shall not constitute or be construed as a waiver of any rights or remedies under the Agreement or of any such breach. This Agreement shall be interpreted and construed in accordance with the internal laws of the State of New York. The User shall not sell, assign, or otherwise transfer any license granted hereunder.

CONDITIONS OF AGREEMENT

Subject to the terms and conditions of this Agreement, F.W. Dodge, A Division of The McGraw-Hill Companies, Inc. (“Dodge”), hereby grants to the Subscriber named on the reverse side hereof the non-exclusive right to use: (i) the data identified on the reverse side hereof (the “Data”); and (ii) if indicated on the reverse side hereof, the software identified on the reverse side hereof (the “Software”). The Software and the Data are collectively referred to herein as the “Service”.

1. DATA LICENSE

The Data may be used only by employees of Subscriber. The Data may not be used or accessed by any other person or entity, including but not limited to, employees of any entity which is not wholly-owned by Subscriber. In addition to and notwithstanding anything to the contrary herein, the Data may not in any event be used or be permitted to be used in any manner that is competitive with Dodge’s distribution of the Data.

Electronic Services (Including online, magnetic or optical media, and diskette)

With respect to Data delivered to Subscriber by Dodge in electronic form either through online, magnetic or optical media, or diskette, Subscriber may retrieve, download and print one complete copy of that Data provided, however, that all use of that copy shall be limited to employees of Subscriber. Except as provided in the foregoing sentence, Subscriber may not make copies of the Data.

Unless expressly permitted in an Electronic License Addendum to this Agreement, there may be only one (1) person accessing the Data at a time.

Hard Copy Print and Facsimile

With respect to Data delivered by Dodge in hard copy print form or through facsimile transmission, only employees of Subscriber may use such Data and Subscriber may not make copies of such hard copy printed material.

2. SOFTWARE LICENSE

Dodge hereby grants to Subscriber a non-exclusive, non-transferable license to use any Software identified on the reverse as being included in this license. The Subscriber may make one (1) copy of any such Software for archival or backup purposes only. Unless the context otherwise indicates, the term “Software” shall also include any archival or backup copies of that Software made pursuant to the terms of this Agreement. Unless expressly permitted in an Electronic License Addendum to this Agreement: (i) the Software shall be used solely and exclusively for the internal use of the Subscriber’s employees; (ii) the Software may not be installed on more than one (1) computer processing unit; (iii) the Software may be used solely and exclusively in connection with accessing and using the Data; and (iv) the Software shall be returned to Dodge upon any termination of this Agreement. In the case of software for Market Leader, subscriber may continue to use such software subject to the restrictions of Section 2 (ii).

3. PROPRIETARY RIGHTS

Subscriber shall not, except as expressly permitted herein, copy, modify, alter, sell, transfer, license, assign, publish, distribute, disseminate, allow access to or convey any portion of the Service, or any derivation, revision or combination thereof. Subscriber expressly acknowledges that the Service was prepared by Dodge and/or its licensors through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money. Subscriber agrees to protect all copyright and other proprietary rights of Dodge and its licensors in the Service and to comply with reasonable written requests made by Dodge to protect its licensors. Subscriber shall keep any user I.D.s and passwords strictly confidential and such user I.D.s and passwords shall not be disclosed to anyone not an employee of Subscriber.

4. ONLINE INSTALLATION

If Data will be delivered through electronic online transmission, Subscriber shall provide, at its expense, a computer, telephone line, and modem which is fully compatible with the Data and any applicable Software. All fees associated with such telephone lines are the responsibility of Subscriber.

5. TERM AND TERMINATION

This Agreement shall commence as of the date that it is signed by Subscriber (the “Agreement Date”). The date the Service is initiated is referred to as the “Service Start Date”. Fees for the Service will start to accrue on the Service Start Date. Subscriber will be billed on a prorated basis for the period between the Service Start Date and the Billing Effective Date indicated on the reverse side hereof.

The Agreement shall continue in effect for the Initial Term specified on the reverse side hereof which Initial Term shall commence on the Billing Effective Date.

Upon expiration of the Initial Term, this Agreement shall be automatically renewed for additional terms of one (1) year each, each such term being referred to herein as a “Renewal Term”. Either party may terminate this Agreement during any Renewal Term (but not the Initial Term) effective the first day of any full calendar month upon giving written notice to the other party of at least thirty (30) days prior to the date on which the termination will be effective.

As soon as is practical after termination of this Agreement Subscriber will: at Dodge’s option, destroy or deliver to Dodge all copies of the Data delivered to and reproduced by Subscriber pursuant to this Agreement in Subscriber’s possession or under Subscriber’s control; and expunge any and all Data from any data storage facility, including but not limited to computer processing units, owned by or under the control of Subscriber.

6. FEES

Subscriber shall pay Dodge the fees described on the reverse side hereof and in any addendum to this Agreement upon receipt of invoice by Subscriber. Dodge reserves the right to change any of the fees charged hereunder upon prior written notice, and Subscriber agrees to pay fees assessed hereunder in accordance with the new fee schedule. Notwithstanding the foregoing, Subscriber may terminate this Agreement in the event of any fee increase by providing written notice to Dodge within the thirty (30) day period following the effective date of the fee increase. All fees and charges hereunder are exclusive of any taxes. Subscriber shall be responsible for any Federal, state or local sales, use, property or other similar taxes imposed on any transactions hereunder.

Subscriber may, during the Initial or any Renewal Term, add to the scope of the Service described on the reverse side hereof upon written notice to Dodge and payment of the then current additional fees. Subscriber may not, however, reduce the scope of the Service during either the Initial or any Renewal Term. Subscriber may reduce the scope of the Service effective as of the commencement of the next succeeding Renewal Term by providing written notice to Dodge at least sixty (60) days prior to the end of the then current term.

Dodge shall have the right to terminate a Subscriber’s access to the Service immediately and without notice if a Subscriber has not paid amounts owed hereunder upon receipt of invoice.

7. LIMITED WARRANTY FOR SOFTWARE DISK ONLY

Proper use of the service requires thorough understanding of applicable construction terminology and processes, proper use of the software and proper analysis of the data. Dodge does not and cannot warrant the performance or results that may be obtained by using any portion of the service. The service (and the individual components thereof) are licensed “as is” without any express or implied warranties including any implied warranties of merchantability or fitness for any particular purpose or use.

To the subscriber only, Dodge warrants that the media on which any licensed software is recorded shall be free from defects in material and workmanship under normal circumstances for ninety (90) days from the service start date of this agreement. If during this ninety (90) day period, a defect in the disk occurs, Dodge will replace the disk without charge. The sole and exclusive remedy in the event of a defect is expressly limited to replacement of a disk as provided above. If failure of a disk is the result of an accident, misuse or abuse, then Dodge shall have no responsibility to replace the disk if the defect is due to the negligent or intentional acts of anyone other than Dodge.

Some states do not allow the exclusion of implied warranties, so the above exclusions may not apply to subscriber. This warranty gives subscriber specific legal rights and subscriber may also have other rights which vary from state to state.

8. LIMITATION OF LIABILITY

Neither Dodge, any of its affiliates, nor anyone else who has been involved in the creation, production or delivery of the service or any component thereof shall be liable for any indirect, incidental or consequential damages such as but not limited to loss of anticipated profits or benefits resulting from use of the service or any component thereof or arising out of any breach of warranty even if Dodge has been advised as to the possibility of such damages. In the event that liability is nevertheless imposed on Dodge or any affiliate thereof, total liability hereunder shall not exceed the average monthly fee paid by subscriber to Dodge during the first year of this agreement.

Some states do not allow the limitation or exclusion of liability for incidental or consequential damages so the above limitation or exclusion may not apply to subscriber.

9. GENERAL

Neither party shall have any liability for any default resulting from force majeure which shall be deemed to include any circumstances beyond its reasonable control. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof. The provisions and terms of any purchase order or other instrument issued by Subscriber shall be of no effect and the acceptance of any such order or instrument by Dodge shall not in any way extend or alter the terms of this Agreement. This Agreement may not be modified or amended except by writing signed by both parties. Failure of either party to insist at any time upon strict compliance with the terms of this Agreement or to seek remedy for any breach thereof shall not constitute or be construed as a waiver of any rights or remedies under the Agreement or of any such breach. This Agreement shall be construed in accordance with and governed by the laws of the State of New York. Neither party may assign this Agreement, nor shall Subscriber sell, assign, or otherwise transfer any license granted hereunder. The provisions of Sections 3, 5, 7, 8 and 9 shall survive any termination of this Agreement.

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