This Terms of Service (“Agreement”) is a legally binding contract between you and BuildQ, Inc. (“BuildQ,” “us,” “we,” or “our”) regarding your use of the Service (as defined in Section 1). References to “Customer”, “you”, and “your” refer to the individual, company, or other entity that accepts the Agreement, by executing an ordering document provided to you by us, placing an Order using online functionality BuildQ makes available like clicking a box, creating an Account (as defined in Section 3.2), or otherwise affirmatively accepting the Agreement through another means BuildQ offer you. If the Service is being used on behalf of a company or other entity by an individual authorized to accept this Agreement on its behalf, then all references to “Customer,” “you,” or “your” refer to the company or other entity. If you are a company or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement. If you are accepting this Agreement on behalf of a company or other entity and an authorized representative of the entity has already accepted this Agreement on behalf of the entity or entered into a separate agreement regarding the use of the Service (“Separate Agreement”) prior to the date upon which you accept this Agreement (“Effective Date”), this Agreement will not apply to you and your and the entity’s rights and obligations with respect to the Service will at all times be governed by, and subject to, the Separate Agreement. If you are not eligible, or do not agree to the terms and conditions of the Agreement, then you do not have our permission to use the Service. Your use of and our provision of the Service to you, constitutes an Agreement by BuildQ and by you to be bound by this Agreement
1. Defined Terms
Certain capitalized terms used in this Agreement are defined in Section 13 (Definitions) and others are defined contextually in this Agreement.
2. Overview
BuildQ is a financing arranger for sustainable infrastructure projects, powered by the most sophisticated transaction management platform in the world (“Service”).
3. The Service
3.1 Permitted Use. Subject to the terms and conditions of this Agreement and each Order, BuildQ will make the Service available to Customer and, if Customer is a company or entity, to Customer’s Users during the Subscription Term. Customer may only use the Service internally or delegate authorized third parties to access certain data stored in Customer’s Account.
3.2 Access. To access the Service, Customer and its Users must register for an account (“Account”) and, in doing so, may be required to provide BuildQ with information (such name, email address, or other contact information). Customer agrees that the information it provides to BuildQ is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Only Users, using the mechanisms designated by BuildQ (“Log-in Credentials”), may access and use the Service. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by BuildQ’s breach of this Agreement). Customer will promptly notify BuildQ if it becomes aware of any compromise of any Log-in Credentials. BuildQ may Process Log-in Credentials in connection with BuildQ’s provision of the Service or for BuildQ’s internal business purposes. Customer represents and warrants to BuildQ that: (a) it has not previously been suspended or removed from the Service; and (b) its registration and use of the Service is in compliance with all Laws.
3.3 Restrictions. Customer will not (and will not permit its Users or anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense the Service to a third party (other than Users); (b) use the Service on behalf of, or to provide any product or service to, third parties; (c) use the Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Service, except to the extent expressly permitted by Law (and then only with prior notice to BuildQ); (e) modify or create derivative works of the Service or copy any element of the Service; (f) remove or obscure any proprietary notices in the Service; (g) publish benchmarks or performance information about the Service; (h) interfere with the operation of the Service, circumvent any access restrictions, or conduct any security or vulnerability test of the Service; (i) transmit any viruses or other harmful materials to the Service; (j) take any action that risks harm to others or to the security, availability, or integrity of the Service; (k) access or use the Service in a manner that violates any Law; or (l) use the Service with Prohibited Data or for High Risk Activities. Customer acknowledges that the Service is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that BuildQ is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, BuildQ has no liability for Prohibited Data or use of the Service for High Risk Activities.
3.4 Use of Customer Data. Customer grants BuildQ the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to: (a) provide the Service; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties.
3.5 Privacy Policy. To the extent Personal Data as defined in BuildQ’s Privacy Policy is uploaded, transmitted, submitted, provided, or processed in connection with Customer’s use of the Service, BuildQ will comply with the Privacy Policy.
3.6 Usage Data; Aggregated Data. BuildQ may Process Usage Data and Aggregated Data for internal business purposes to: (a) track use of Service for billing purposes; (b) provide support for Service; (c) monitor the performance and stability of the Service; (d) prevent or address technical issues with the Service; (e) to improve Service, its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.
3.7 Customer Obligations. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws and the Acceptable Use Policy when using the Service. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for BuildQ to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process the Customer Data set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.
3.8 Suspension. BuildQ may immediately suspend Customer’s and its Users’ access to the Service if: (a) Customer breaches Section 3.3 (Restrictions) or Section 3.8 (Customer Obligations); (b) Customer’s Account is 30 days or more overdue; (c) changes to Laws or new Laws require that BuildQ suspend the Service or otherwise may impose additional liability on us; or (d) Customer or its Users actions risk harm to any of BuildQ’s other customers or the security, availability, or integrity of the Service. Where practicable, BuildQ will use reasonable efforts to provide Customer with prior notice of the suspension. If the issue that led to the suspension is resolved, BuildQ will use reasonable efforts to restore your access to the Service.
3.9 Modifications to the Service. BuildQ may modify or discontinue all or any part of the Service at any time (including by limiting or discontinuing certain features or functionality of the Service), temporarily or permanently, without notifying Customer (except that BuildQ will use commercially reasonable efforts provide Customer with 30 days’ prior notice in the event of any deprecation of any material feature or functionality of the Service). BuildQ will have no liability for any change or modification to the Service or any suspension or termination of access to or use of the Service as a result thereof. Notwithstanding the foregoing, any such change or modification will only apply on a going-forward basis with respect to any Order entered into after BuildQ’s implementation thereof.
3.10 Customer Systems. Customer will provide and maintain any hardware, software, other technology, and infrastructure that Customer require to access and use the Service as defined in current version of BuildQ’s usage guidelines and standard technical documentation for the Service that BuildQ makes generally available to BuildQ’s customers upon written request (the “Documentation”).
3.11 Third-Party Platforms. Use of Third-Party Platforms are subject to Customer’s agreements with the relevant provider and not this Agreement. BuildQ does not control and have no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Service or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Service, Customer authorizes BuildQ to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.
3.12 Limitations on the Service. Nothing on the Service is or should be viewed as or understood to be an offering of securities. Currently, BuildQ is developing features that will facilitate transactions in certain types of renewable energy projects, but we are not yet providing any such services. Any transactions BuildQ facilitates, and your relationship with BuildQ based on those transactions, will be governed by documentation specific to the transactions. That documentation will also describe any fees payable based on the transactions BuildQ facilitates.
4. Limited Warranty; Disclaimer
4.1. Limited Warranty. BuildQ warrants to Customer that the Service will perform materially as described in the Documentation during the Subscription Term (“Limited Warranty”).
4.2. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 4.1, THE SERVICE IS PROVIDED “AS IS”. BUILDQ, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. WE DO NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT BUILDQ WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. BUILDQ IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE BUILDQ’S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE PERFORMANCE TO THE SHORTEST LEGALLY PERMITTED PERIOD.
4.3. Warranty Remedy. If BuildQ breaches a Limited Warranty during the Subscription Term and Customer makes a reasonably detailed warranty claim in the manner required by BuildQ within 30 days of discovering a breach of the Limited Warranty for the Service, then BuildQ will use reasonable efforts to correct the non-conformity. If BuildQ cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the affected Order as it relates to the Service. BuildQ will then refund to Customer any pre-paid, unused Fees for the terminated portion of the applicable Subscription Term. This Section 4.3 sets forth Customer’s exclusive remedy and BuildQ’s entire liability for breach of the Limited Warranty. This warranty does not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Service other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use.
5. Term and Termination
5.1. Term. This Agreement starts on the Effective Date and continues until expiration or termination of all Subscription Terms.
5.2. Termination. Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. If Customer violates any provision of this Agreement, then your authorization to access the Service and this Agreement automatically terminate. In addition, BuildQ may, in its sole discretion, terminate this Agreement or Customer’s Account on the Service, or suspend or terminate Customer’s access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to Customer arising from such termination.
5.3. Effect of Termination. Upon expiration or termination of an Order, Customer’s access to and BuildQ’s obligations to provide the Service will cease. During a Subscription Term and for the 30 day period immediately following the date of expiration or earlier termination of the applicable Subscription Term, Customer may export data or information that Customer (including its Users) submits to the Service, including from Third-Party Platforms from the applicable Service, using the export features described in the applicable Documentation. After that 30 day period, BuildQ will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information, as defined in Section 9, may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.
5.4. Survival. These Sections survive expiration or termination of this Agreement: 3.3 (Restrictions), 3.7 (Usage Data; Aggregated Data), 3.8 (Customer Obligations), 1.1 (Fees), 1.1 (Authorization), 4.2 (Disclaimer), 5.3 (Effect of Termination), 5.4 (Survival), 6 (Ownership), 7 (Limitations of Liability), 8 (Indemnification), 9 (Confidentiality), 12.1 (General Provisions), 12.2 (Governing Law), 12.3 (Additional Terms), and 13 (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
6. Ownership
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data. Except for Customer’s use rights in this Agreement, BuildQ and its licensors retain all intellectual property rights and other rights in the Service, Software, Documentation, Usage Data, and BuildQ’s technology, templates, formats, and dashboards, including any modifications or improvements to these items made by us. If Customer provides BuildQ with feedback or suggestions regarding the Service or its other offerings, BuildQ may use the feedback or suggestions without restriction or obligation.
7. Limitations of Liability
Except for breaches of Sections 3.1 (Permitted Use), 3.3 (Restrictions) and 9 (Confidentiality), neither BuildQ’s, Customer’s or their respective suppliers or licensors will have liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance. Except for breaches of Sections 3.1 (Permitted Use), 3.3 (Restrictions) and 9 (Confidentiality) and liability arising out of Section 8 (Indemnification), neither BuildQ’s, Customer’s or their respective suppliers or licensors liability arising out of or related to this Agreement will exceed in aggregate the amounts paid or payable by Customer to BuildQ pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement. The waivers and limitations in this Section 7 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
8. Indemnification
Customer will defend BuildQ from and against any third-party claim to the extent resulting from Customer Data or Customer’s breach or alleged breach of Section 3.8 (Customer Obligations), and will indemnify and hold BuildQ harmless against any damages and costs awarded against BuildQ (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.
9. Confidentiality
9.1. Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is marked by the disclosing party (“Discloser”) as proprietary or confidential or, if disclosed orally, is designated as proprietary or confidential at the time of disclosure. Our Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Service.
9.2. Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 3.5 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where BuildQ is the Recipient, BuildQ may retain the Customer’s Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 9 and they are bound to confidentiality obligations no less protective than this Section 9.
9.3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.
9.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 9.
9.5. Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
10. Trials and Betas
If Customer or its Users receive access to or use of Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), such access to or use is permitted only for Customer’s internal evaluation and testing purposes during the period designated by BuildQ (not to exceed thirty 30 days unless otherwise agreed upon by the parties in writing). These Trials and Betas will be considered part of the Service and, subject to the remainder of this Section 10, all provisions of this Agreement relating to the Service will apply to these Trials and Betas. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that BuildQ may never release, and their features and performance information are deemed to be BuildQ’s Confidential Information. BuildQ may suspend Customer’s and its Users’ access to the Trials and Betas at any time. Customer’s and its Users’ use of Trials and Betas is at their own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BUILDQ PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS, AND OUR LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED US $50.00.
11. Modifications
BuildQ may modify this Agreement from time to time with notice to Customer. Modifications take effect at Customer’s next Subscription Term or Order unless BuildQ indicates an earlier effective date. If BuildQ requires modifications with an earlier effective date and Customer objects, Customer’s exclusive remedy is to terminate this Agreement with notice to BuildQ, in which case BuildQ will provide Customer a refund of any pre-paid Fees for the terminated portion of the current Subscription Term. To exercise this termination right, Customer must notify BuildQ of its objections within 30 days after BuildQ’s notice of the modified Agreement. Once the modified Agreement takes effect Customer’s continued use of the Service constitutes its acceptance of the modifications. BuildQ may require Customer to click to accept the modified Agreement.
12. Miscellaneous
12.1. General Provisions. This Agreement, including the Privacy Policy and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between Customer and BuildQ regarding your use of the Service. Customer may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without BuildQ’s prior written consent. BuildQ may assign this Agreement and all rights granted under this Agreement, including with respect to your Customer Data, at any time without notice or consent. The failure to require performance of any provision will not affect BuildQ’s right to require performance at any other time after that, nor will a waiver by BuildQ of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, pandemic, epidemic, health emergency, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
12.2. Governing Law. This Agreement is governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Delaware and both parties submit to the personal jurisdiction of those courts.
12.3. Additional Terms. Customer’s use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that BuildQ may post on or link to from the Service, including any documentation that may govern future transactions that Customer engages in through the Service (“Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
12.4. Consent to Electronic Communications. By using the Service, Customer consents to receiving certain electronic communications from BuildQ as further described in BuildQ’s Privacy Policy. Please read BuildQ’s Privacy Policy to learn more about BuildQ electronic communications practices. Customer agree that any notices, agreements, disclosures, or other communications that BuildQ sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.
12.5. Contact Information. The Service is offered by BuildQ, Inc. Customer may contact BuildQ by sending correspondence to that address or by emailing BuildQ at support@buildq.ai.
12.6. Notice to California Residents. If Customer are a California resident, then under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
Definitions
“Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.
“Customer Data” means any data or information that: (a) Customer (including its Users) submits to the Service, including from Third-Party Platforms; and (b) is collected, accessed, used, disclosed, transferred, transmitted, stored, hosted, or otherwise processed by BuildQ to provide the Service to Customer.
“Customer Systems” means Customer’s hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Service including Supported Devices.
“High Risk Activities” means activities where use or failure of the Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
“Laws” means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data, including Customer Personal Data and Customer Personal Information.
“Privacy Policy” means the Privacy Policy at www.buildq.ai/privacy.
“Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws.
“Software” means any software, scripts, or other code required by BuildQ to operate the Service.
“Third-Party Platform” means any third-party platform, add-on, service, or product not provided by BuildQ that Customer elects to integrate or enable for use with the Service.
“Usage Data” means information generated from the use of the Service, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Service, but excluding any identifiable Customer Data.
“User” means any employee or other authorized user of Customer that Customer allows to use the Service on Customer’s behalf.
